S v Mabunda (CC15/2021) [2022] ZAMPMBHC 50 (24 June 2022)

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[2022] ZAMPMBHC 50
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S v Mabunda (CC15/2021) [2022] ZAMPMBHC 50 (24 June 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NO: CC 15/2021
DPP
REF: M1/2021
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
24
June 2022
In
the matter between:
THE
STATE
V
MUGIYO
ULRICH
MABUNDA

ACCUSED
JUDGMENT
ON MERITS
MOOSA
J
:
[A]
INTRODUCTION
[1]
MR MUGIYO ULRICH MABUNDA (‘accused’)
is arraigned
on the following charge:
[1.1]
MURDER READ WITH THE PROVISIONS OF SECTION 51(1) OF THE CRIMINAL
LAW AMENDMENT ACT 51(
sic)
OF 1997
IN
THAT
upon
or about 14 May 2020, and at or near Stonehenge, in the district of
Mbombela, the accused did unlawfully and intentionally
kill
Tebogo
Dikeledi Auspicious Mabunda
,
an adult female person.
In
case of conviction, the said Director of Public Prosecutions prays
for a sentence in terms of the provisions of section Section
51(1)
read with Part 1 of Schedule 2 of the Criminal Law Amendment Act,
1997 (Act 105 of 1997) in that the murder was planned and/or

premeditated.
[2]
The accused pleaded not guilty to the charge, which he faced in the
indictment. Adv
De Necker (‘Mr De Necker’) on behalf of
the accused confirmed that the plea of the accused was in accordance
with his
instructions, and that the accused elected to remain silent.
The accused accordingly confirmed the plea explanation made on his

behalf.
[3]
The accused was duly explained the provisions, application and
implications of the
Criminal Law Amendment Act No. 105 of 1997
(‘Minimum Sentences Act’), as well as the seriousness
thereof. The accused
confirmed that he accordingly understood the
provisions of the aforementioned Act.
[B]
ADMISSIONS
[4]
The accused did not make any admissions in terms of section 220 of
the Criminal Procedure
Act, 51 of 1977 (‘CPA’) at the
commencement of the trial on Monday, 04 October 2021.
[C]
EVIDENCE
[5]
To discharge the onus upon it to prove that the accused committed the
crime charged,
the prosecution called the following viva voce
witnesses:
[5.1]
Ntombikayise Jabu Nkosi
(‘Nkosi’), the accused’s
domestic helper testified, inter alia, as follows:
[a]
She was in the employ of the accused and his family for a period of 3
(three) years
up until the time of the incident. The accused and
deceased resided in the family home together with their three
children, Kenso,
Phulani and Katikani.
[b]
On Thursday, 14 May 2020 she completed her daily chores and was
seated with the children.
At approximately 16h55, the accused entered
the home and proceeded to the guest room, sat down and a short while
later emerged
from.
[c]
At this stage, she departed from the lounge and proceeded to
Katikani’s bedroom.
She thereafter heard the accused making a
telephone call to the deceased. The telephone was on loudspeaker and
resultantly she
was able to hear the conversation between the
parties. The accused inquired regarding the deceased’s
whereabouts, and whereupon
she informed him that she was en route
home, and that she would arrive thereat shortly.
[d]
The deceased arrived a short while later and proceeded to the guest
room, wherein
she usually prays on a daily basis. She did not enter
that room as the accused was therein, but proceeded to the main
bedroom.
[e]
The accused thereafter proceeded to the bedroom and requested to
speak to the deceased,
whereupon she complied and followed him. The
children followed them as they were proceeding outside, and the
accused then requested
them for privacy, as he wanted to speak to the
deceased alone.
[f]
She entered the bathroom and observed the accused returning from
outside, entering
the guest room and thereafter proceeding outside
again. She began to take a shower and a short while later heard Kenso
screaming
and saying “
What are you doing with my mum
”.
[g]
She came out of the bathroom, and saw Kenso running and he entered
Katikani’s
bedroom. She followed him into the room and saw him
looking out. She looked out of the window and saw the accused holding
a firearm
and he was busy shooting in front of him. When he finished
shooting, she saw him bend down to where the deceased was lying. The

accused was approximately 20 (twenty) metres away and the visibility
was good, as it was not dark.
[h]
She heard the neighbours shouting for Kenso and ran outside. At this
stage she heard
a gunshot, and discovered that the accused was also
injured. He was asking for water to be brought to him. She observed
the accused
to be lying alongside the deceased, and he was crying.
[i]
The neighbours summoned the members of the SAPS and the members of
the Armed
Response team.
[j]
During cross-examination, she denied the proposition that the
deceased
had arrived home before the accused. She was clear that it
was the accused who arrived first in the Jeep, and the deceased
thereafter
in the Mercedes Benz.
[k]
She denied the proposition that the accused did not make any call to
the deceased
at 17h00. She was adamant that he had made a telephone
call to the deceased, and she heard the conversation, as it was on
loudspeaker.
[l]
She confirmed that she did not hear the conversation between the
accused and
deceased when they were outside. Further that there was
no any heated discussion between the parties.
[m]
During cross examination it was put to her that the accused was in
possession of his firearm
at the time, as he normally carries it with
him. She was unable to comment, and stated that she did not know.
[n]
During cross-examination, she confirmed that she had made two
statements to the police.
The first one was made on 14 May 2020, and
the second one on 16 November 2020. She further stated that Sergeant
Horn (‘Sgt
Horn’) did not read the statement back to her,
and accordingly was made to sign the statement without reading the
contents
thereof. Further, that she was not asked to take an oath,
and did not confirm to him as to whether the contents were true.
[o]
At this stage of the cross examination, Mr De Necker then applied
that a trial within
a trial be held in order to determine the
admissibility of the statement, as he required to put the contents of
the statement to
Nkosi.  Accordingly, having heard argument from
both parties, and having considered the dicta in
Rex v Nyede 1951(3) SA 151 (T)
and
S v Mcoseli
2012 (2)
SACR 82
(ECG)
, I ruled that a trial within a trial be held.
Accordingly,
the evidence of this witness stood down for practical reasons,
pending the evidence of Sgt Horn (third witness), who
was unavailable
at this stage. However, I shall deal with the remainder of her
evidence hereunder for ease of reference, having
found the statement
to be admissible in law.
[p]
During her further cross-examination, she was adamant that the
statement was not read
back to her, despite the contrary evidence of
Horn, in this regard. She further stated that she was having
difficulty in communicating
with Horn in English, and was unable to
properly articulate herself. Accordingly, there were various aspects
that she had told
him which were not written down.
During re-examination she stated that as
a result thereof it became
necessary for her to make a second statement, and at this stage she
communicated in Siswati.
[q]
During cross-examination she stated that she heard possibly 5 (five)
shots being fired,
during the shooting.
[r]
During clarifying questions by the Court in respect of paragraphs 6
(six), 7
(seven) and 8 (eight) of her statement, she stated that she
did not know where Sgt Horn obtained the information in the
aforementioned
paragraphs.
That
in essence concluded the evidence of the witness, Nkosi.
[5.2]
Jacobus Johannes Meiring
(‘Meiring’), a member of
the Stonehenge Security Group and the first responder who attended
the scene testified, inter
alia, as follows:
[a]
On Thursday, 14 May 2020 at 17h29 he received a call regarding the
shooting incident.
He immediately proceeded to    7
Sekretariesvoel Street, Stonehenge and upon his arrival observed the
deceased to
be lying face down and the accused near her. He noted
that the accused had a pistol in his right hand, and he asked him as
to who
shot the deceased. The accused did not say anything.
[b]
He removed the firearm from the accused’s hand, and noted that
the deceased
did not have any pulse. The accused said to him that he
should finish him off. He then responded to the accused that justice
will
have to take its course. He noted that the accused was injured
on his left arm and chest. He subsequently handed over the scene
to
members of the SAPS.
[c]
During cross-examination he stated that he could not dispute the
proposition that
the accused was shot three times in his upper body
and once on his left arm. He noted multiple injuries on the upper
left torso
of the deceased.
[d]
He came to the conclusion that the accused was the one who fired the
shots as he was
holding the firearm in his right hand. It was
proposed to him that he could not exclude the conclusion that the
deceased fired
the shots; and to which he stated that he could not.
However, he concluded that it was the accused who fired the shots, as
he was
still alive and his wife was dead. His conclusion was further
fortified by the request of the accused to finish him off.
That
in essence concluded the evidence of the witness, Meiring.
[D]
TRIAL WITHIN A TRIAL
[5.3]
Sergeant Michael Ockert Horn
(‘Sgt Horn’), a
member of the South African Police Services (‘SAPS’) with
21 (twenty one) years of service
and the investigating officer
testified, inter alia, in the trial within a trial as follows:
[a]
He is no longer in the employ of the SAPS since

31 July 2020. He confirmed that he took down the first statement from
Nkosi, shortly after the incident.
[b]
He duly interviewed Nkosi in English, and according to him there
appeared to be no
real challenge in them understanding each other. He
wrote down what she explained to him. He did not add anything to the
statement,
nor leave out any detail therefrom.
[c]
He read the statement back to her once it was completed, and she was
satisfied and
did not want to add anything thereto. She duly signed
the statement, and he accordingly had the statement commissioned by
the Commissioner
of Oaths.
[d]
During cross-examination by Mr Molatudi, Sgt Horn conceded that it is
not unheard
off that a witness may make more than one statement.
Further that one cannot come to the conclusion that all subsequent
statements
are false.
[e]
He conceded that he was aware that English was not Nkosi’s
first language when
he interviewed her, and could not dispute the
fact that Siswati was Nkosi’s home language.
[f]
During re-examination by Mr De Necker he stated that if he was told
that the
witness saw the accused shooting the deceased, he would not
have missed it and it would have been included in the statement.
That
in essence concluded the evidence of Sgt Horn in the trial within a
trial
[6]
Accordingly, having heard argument from both parties, I duly ruled
that the statement
that was made by Nkosi was admissible in law, and
accordingly allowed Mr De Necker to continue with his cross
examination in respect
of the contents of the statement. I have
accordingly dealt with this aspect during the evidence of Nkosi.
[E]
GUILTY PLEA
[7]
I pause to mention that at this stage of the proceedings, Mr De
Necker duly informed
the Court that both himself and Mr Molatudi have
been engaged in certain discussions, and whereupon the accused has
decided to
change his plea.
[8]
Accordingly, on 08 October 2021 the accused pleaded guilty to the
charges in terms
of section 112 (2)(b) of the CPA, freely and
voluntarily, in his sound and sober senses, and without any undue
influence being
applied upon him,
inter alia
, as follows:
“
[a]
I admit that on or about 14 May 2020 and
at or near Stonehenge in the district of Mbombela, Mpumalanga, I
caused the death of Tebogo
Dikeledi Auspicious Mabunda unlawfully and
intentionally by shooting her with a firearm. The deceased was an
adult female at the
time of her death.
[b]
I further declare that the implications of these admissions have
been explained to me, and I understand that the State does not need

to prove the allegations contained herein and that it stands as prima
facie proof thereof.
[c]
The provisions of Section 51(2) of the Criminal Law Amendment Act
105 of 1997 (as amended) were explained to me by my legal
representative,
and I understand that should I be found guilty, in
the absence of compelling and substantial circumstances justifying
the imposition
of a lesser sentence, a minimum sentence of 15 years
imprisonment may be imposed on me. I have been advised and accept
that this
plea stipulates that I plead guilty in terms of Section 51
(2) (a) (i) of the Criminal Law Amendment Act 105 of 1997 (as
amended).
[d]
The deceased, Tebogo Dikeledi Auspicious Mabunda, is the person
mentioned in the murder charge in the indictment. On 14 May 2020,
the
deceased and I were married and resided together with her 14 year old
son (my stepson), our 9 year old son, and our 4 year
old daughter at
house no 7 Sekretariesvoel Street, Stonehenge in Nelspruit.
[e]
The deceased and I were married some 10 years ago. She was
employed as a quantity surveyor in the Department of Public Works.
[f]
On that day of the incident I called the deceased from my Jeep
Wrangler vehicle, as I wanted to discuss the plans for us relating
to
the coming weekend. I wanted to visit my mother who was ill, and my
wife had stated that this was a challenge as she was working
on
Saturday due to the situation with the Covid pandemic. My wife
indicated that she was already at home, and that we would talk
when I
arrived at home.
[g]
Upon arriving at home I found my wife in the house, and indicated
that we should go and talk outside, as it was our habit of always

going outside to discuss matters that we did not want the children to
be part of. We duly went outside, and we talked for quite
a while.
Later on we went to sit in my Jeep vehicle to talk further.
[h]
Whilst we were talking in my vehicle, my wife received a phone
call and it was clearly work related, as she asked the other person

to send her a report, obviously relating to work. It was a quick
conversation and I thought nothing of it.
[i]
As we were talking another phone call came to my wife while we
were seated in my stationary and switched off vehicle. My wife opened

the door and exited the vehicle and I remained seated inside the
vehicle. I saw that my wife walked to the back of the vehicle
talking
on the phone and she was busy on the phone for approximately five to
seven minutes. It was obvious to me that I was not
meant to listen to
the conversation and the whole conversation look very suspicious and
in the circumstances.
[j]
I was then very surprised as my wife would always and usually
speaking in my presence and upon realising that something odd was at

hand, I exited the vehicle and asked her why she left the vehicle and
who she was talking to.
[k]
My wife quickly ended the call and claimed somewhat lackadaisical
and to my utter surprise that it was her boyfriend on the phone.
I
could also hear the voice of a male person on the other side when I
initially approached her before the call was ended.
[l]
I pause to say here that my wife and I had a challenging past
where she at times would engage in adulterous affairs which then
caused
me severe emotional hardship, but after every occasion and
upon her pleas I resumed our relationship. After her last affair that

I was aware of, and that gave rise to the birth of her eldest son
with another man, we reconciled and decided to get married in
order
to commit fully to our relationship. This happened some 10 years ago.
I would want to believe that that was the last affair
she had, but
now after all, I would never be sure unfortunately.
[m]
At the time when my wife told me about yet another new boyfriend
on the day of the incident, my sense of rationality left me at that

moment as my wife intimated and said that it was high time that I
face the reality of her belonging to another man and must accept
that
she has come to other pastures and was leaving me. Our whole past
came back in one split second, and the emotional despair
and pain
that I had felt so many times in our past was suddenly back. This
time it was actually much much worse feeling this betrayal,
as we now
had three children, but that did not even prevent the deceased from
repeating her past conduct of infidelity.
[n]
From the State case I learnt during preparation for this trial
that my wife had already been in the process at that time of
instituting
divorce proceedings with her attorney, Miss Tersia
Marshall
.
[o]
After this great shock and emotional blow that I had just been
dealt in a very callous fashion by the deceased, I took out my
firearm
and started shooting at my wife, not caring at that time
whether I hit her or not. I fired several shots at my wife with my
firearm,
and in the haze I was in I tried to end my own life by
shooting myself multiple times in the chest and once in my left upper
arm.
I always carry my firearm with me, although it is concealed
always.
[p]
The crime was committed in the heat of the moment, at a time when
I was emotionally charged and deeply hurt by a callous rebuff from

the person to whom I was married and in love with since High school
and thus more than 20 years.
[q]
The adulterous affair of my wife flooded my mind and provoked me
to the extent that I momentarily lost control of my inhibitions
and
shot the deceased. During the firing of my firearm at my wife and
myself, I can’t recall all the details as I was too
angry and
for a certain period lost my consciousness, but I remember being
admitted in
Medi Clinic
Hospital in Mbombela. I remember that the medical personnel were
taking my information and cutting my T-shirt as I
was bleeding
profusely and I still recall that I screamed that I wished that I
could die. I do not remember having spoken to Mr
Meiring at my house
as he testified in this matter.
[r]
I further remember that there were a lot of doctors and that I was
confused as they told me that I shot my wife and also myself.
I was
informed that I had four bullet wounds in my upper torso and my arm
and felt that my left hand was not working at that point
in time. I
was told that I almost died due to my injuries.
[s]
The following day I was informed that my wife had died on the
scene and the police also informed me in hospital that I was duly
under arrest and subsequent to that appeared in the court at a later
date after being fit to attend court.
[t]
I have no recollection of exactly how many shots I fired at the
deceased, and neither do I have any recollection of how many times
I
shot myself.
[u]
I always carry my firearm with me as I was in the security sector
working at Transnet at that point in time but has since been
unemployed
since the month of November 2020. I was a police officer
for eight years prior to my employment at Transnet security division
where
I have been employed since the year 2010 until November 2020.
[v]
My wife and I had known each other since high school but we only
started dating at Technicon Pretoria where we were both studying.
I
have therefore known her since school and we were in love since high
school, but married only for the last 10 years. My wife
also had
another son with another person that she had a relationship with
during our relationship, as I described hereinabove.
He was two years
old when we decided to get married, and although he is my stepson, I
have always raised him together with our
other two children as one of
my own children.
[w]
I wish to state unequivocally that I am guilty of a crime of
passion, and not one of gratuitous violence. I acted with diminished

responsibility and impaired judgment at the time of this very sad
incident that I must carry with me for the rest of my life. Despite

my plea that I acted in a state of diminished responsibility, I admit
that my conduct was unlawful and intentional in the sense
that I knew
that firing shots at the deceased might cause her death, but I still
did so regardless of the possible consequences
that I had foreseen,
because of the reasons mentioned herein above.
[x]
I wish to state that despite everything that happened, my worst/
gravest punishment is that I killed the woman whom I still love

dearly, the one and only woman I loved the most in my life and for
the most of my adult life. She was also the mother of my children.
I
have deep remorse over my conduct and actions and will regret this
until the day that I die.
[y]
It will be submitted, based on all of the above-mentioned
admissions that this was an incident which happened on the spur of
the
moment and as a result of emotions and loss of temper or anger or
inhibitions. I did not plan to kill my wife.
[z]
I further admit that Dr Sunnyboy James Mabelane

(‘Dr Mabelane’) performed a medico-legal post-mortem
examination on the body of the deceased person on 15 May 2020
and
recorded his findings on the form GW7/15, with Death Register Number
DR 164/2020, which is handed in as Exhibit “C”.
[aa]
The originality, authenticity, facts and findings in the
post-mortem report are correct, and the cause of death of the
deceased
is correctly recorded as: “Gunshot wounds to the
Body”.
[9]
Mr Molatudi duly informed the Court that the plea was not in
accordance with the State
case, and that it did not conform with the
evidence of the State. Advising in the circumstances, that the State
did not accept
the guilty plea of the accused. Accordingly, stating
that the State wished to proceed with leading further evidence in the
trial,
in accordance with it’s case.
[10]
Having due regard to the provisions of section 113 of the CPA, and
which provides that: “
…if the court is of the opinion
for any other reason that the accused’s plea should not stand,
the court shall record
a plea of not guilty and require the
prosecutor to proceed with the prosecution: Provided that any
allegation, other than an allegation
referred to above, admitted by
the accused up to a stage at which the court records a plea of not
guilty, stands as proof in any
court.”
[1]
Accordingly, a plea of not guilty was entered on behalf of the
accused.
[F]
EVIDENCE
[11]
The State then proceeded to lead the evidence of a further five
witnesses, in support of the
charges and in accordance with the State
case.
[11.1]
Tersia Marshall
(‘Marshall’), a practicing
attorney in Mbombela testified, inter alia, as follows:
[a]
The Ward Counsellor referred the deceased to her as a client on
Saturday, 02 May 2020.
She accordingly met with the deceased on the
aforesaid date, and duly received instructions to institute an action
against the
accused for a decree of divorce.
[b]
During her consultation and preparation she considered,
inter
alia
, the finances of the deceased, and noted therefrom that she
was responsible for funding the entire marriage, and that she funded

the accused’s lifestyle. The deceased informed her during one
of their many conversations, that the accused was full well
aware of
the divorce proceedings, and that he had consulted with his family in
this regard.
[c]
On Sunday, 10 May 2020 at approximately 19h00 the deceased called her
and reported
to her that she was feeling scared. She comforted the
deceased and informed her that she will duly make an application for
an interdict
against the accused, on Monday, 11 May 2020.
[d]
She duly had a conversation on Monday, 11 May 2020 with the deceased
regarding the
application for the interdict. The deceased informed
her that she was scared to proceed with the application, as it would
aggravate
the situation at home.
[e]
She confirmed that she was in constant communication with the
deceased via Whats App,
email and voicemail during the period
Saturday, 02 May 2020 – Thursday, 14 May 2020. The deceased was
unhappy about the divorce
action, and felt rather embarrassed as a
result thereof. She duly questioned the deceased regarding the reason
for the divorce,
and more especially if there was any fault on her
part. The deceased responded and informed her that there was no fault
on her
part.
[f]
On Thursday, 14 May 2020 at 17h26, she received a telephone call from
the deceased.
The deceased was crying and informed her that the
accused had attempted to assault her once again, and that she was
scared. She
requested the deceased to take the children with her to
her aunt’s house, and that they would meet the following
morning,
in order to obtain an interdict against the accused.
[g]
Whilst speaking to the deceased, she heard her screaming and
thereafter heard two
loud bangs and the call terminated. She
immediately called the deceased at 17h28, and her phone just rang and
remained unanswered.
She thereafter noted on one of the security
group chats that there was a shooting. She tried to make contact with
the deceased
once again, and was unsuccessful in this regard.
[h]
She proceeded to the deceased’s residence, and upon her arrival
thereat observed
that the members of the SAPS and the paramedics were
on the scene. She was duly informed that her client had passed away,
by members
of the SAPS.
[i]
During cross-examination she confirmed that the deceased did not want
to proceed
with the application for the interdict, as it would have
aggravated the situation at home.
[j]
It was put to her that the accused will state that he was never aware
of the potential divorce proceedings. She stated that the deceased
informed her that the accused knew her every move, and that he
was
aware of the divorce proceedings, as he had consulted with his
family.
[k]
It was further put to her that the accused will deny that she was
funding his lifestyle,
and that he in fact paid for the motor
vehicles and school fees. She responded that the deceased was paying
for the motor vehicles
and that these vehicles were registered in her
name. Further, that the deceased paid for everything.
That
in essence concluded the evidence of Marshall.
[11.2]
Bonani Dolly Hlongwane-Sithole
(‘Hlongwane’), the
deceased’s friend testified, inter alia, as follows:
[a]
She knew the deceased since 2000, when they met at the Tshwane
University of Technology.
They continued being friends during their
educational career, and even after they qualified. She commenced
working at Eskom in
Standerton, whilst the deceased was employed at
the Department of Public Works, Nelspruit.
[b]
Both their first born children were born out of wedlock in 2006, and
during this time
they continued being friends. The deceased
subsequently informed her that she was getting married to the
accused. She was surprised
that they had reconciled, as they had
broken up whilst they were at University, due to them having
problems.
[c]
She confirmed that the deceased’s eldest son, Kenso was born
during the time
that the deceased and accused were not together after
University, and which breakup was for a period of 4 – 5 years.
[d]
They kept in touch and continually discussed their relationships with
each other.
Their discussions continued until two weeks prior to the
deceased’s death.
[e]
The deceased was not a secretive person, and did not hide things. The
deceased was
a frank person and during their employment they would
have to interact with male colleagues, as they worked in a male
dominated
industry.
[f]
The deceased confided in her regarding problems that she experienced
from the
first year of her marriage to the accused.
[g]
During April 2020, they spoke and the deceased informed her that she
was no longer
happy in her relationship with the accused, and that
she was seriously considering divorce. She advised the deceased to
rather
stay and to take care of her children. The deceased responded
to her in a Whatsapp message, and told her that she will continue

with the divorce proceedings after the lockdown.
[h]
During cross examination she was adamant that the accused and
deceased were separated
for a period of 4 – 5 years after
University, and she was full well aware of this fact as they were
communicating with each
other regularly.
That
in essence concluded the evidence of Hlongwane.
[G]
INTERLOCUTORY APPLICATION AND RELATED MATTERS
[12]
At this stage of the proceedings on Friday, 08 October 2021 at 13h45,
Mr Molatudi informed the
Court that he intended to call Khenso
Matsani      (15 years old) as his next
witness, and further advising
that this witness be allowed to testify
via the closed circuit television system in terms of section 158 of
the CPA. Arguing further
that this witness was at home on the day in
question, and that the witness would suffer undue stress if he
testified in open court.
Mr De Necker responded by informing the
Court that he required time to prepare himself in order to reply to
the application. Accordingly,
by agreement the matter was postponed
to Monday, 11 October 2021 for this purpose.
[13]
On Monday, 11 October 2021 at 10h00 Mr De Necker informed this Court
in chambers that the accused
was ill, and that he is awaiting the
medical certificate from the accused’s family. At 12h30, the
medical certificate was
duly received, and which was valid until 15
October 2021 (Exhibit “D”).  Mr De Necker advised
the Court that he
did not have any further information regarding the
accused’s condition. After hearing submissions from both
parties, I duly
handed down a Court Order wherein
, inter alia
,
I authorised a warrant of arrest for the accused, and stayed same
until Wednesday,           13

October 2021. The accused was ordered to provide a medical
certificate with particularity and specificity setting out the
diagnosis
and further prognosis of his medical condition. I simply
did so on the basis that the medical certificate was thunderously
silent
regarding the accused’s condition and/or ailment.
[14]
On Wednesday, 13 October 2021, counsel attended at my chambers and I
was informed by Mr De Necker
that the accused was present at Court,
but was very ill and could not stand or sit upright, and was lying
down. Advising that he
was unable to take proper instructions from
the accused, and would not venture close to the accused, for the sake
of his own personal
safety. Further advising that the accused
attended Court as his treating medical practitioner did not want to
divulge any information
regarding his medical condition.
It
further emerged during the discussions that the integrity of the
medical certificate was placed in dispute by the State. Mr Molatudi

informed the Court that he had no other option but to seek an order
to have the doctor attend Court, in order to indicate as to
the
accused’s medical condition and the prognosis thereof.  I
pause to mention that this request was precipitated by
the fact that
the deceased’s family informed him that the treating doctor was
a relative of the accused. Further, it was
common cause that the
accused had failed to produce a further medical certificate, as
ordered to, in my court order dated Monday,
11 October 2021.
[15]
Having duly heard argument from the parties and having carefully
considered the matter, I handed
down a Court Order,
inter alia
,
ordering the investigating officer to forthwith take the accused to
the Rob Ferreira Hospital, Mbombela together with the court
order, in
order for the attending medical practitioner to examine the accused,
and to report on the fitness of the accused to stand
trial on
Thursday, 14 and Friday 15 October 2021.
Further
ordering that Dr Zelda Mkhonto (‘Dr Mkhonto’) attend
court on Thursday, 14 October 2021 at 10h00, together with
her
medical records in respect of her examination and diagnosis of the
accused, as conducted on Monday, 11 October 2021.
[16]
On Thursday, 14 October 2021, Dr Mkhonto duly attended court and
testified regarding her examination
of the accused, and in respect of
the medical certificate. Further, the medical report from the
attending doctor at Rob Ferreira
hospital was received and
considered. However, the accused was not before the Court, at this
stage, as he was still at hospital.
Mr De Necker stated that he did
not have any questions for Dr Mkhonto, as his client was not before
the Court, and further that
these proceedings were being conducted in
the absence of his client.
Having
duly considered Dr Mkhonto’s evidence, as well as the report
from Rob Ferreira Hospital (Exhibit “E”) and
in the
interests of justice and the right of the accused to a fair trial,
the trial was postponed in the accused’s absence
for further
hearing to Monday, 02 November 2021 until Wednesday,
04

November 2021.
[17]
Upon resumption on Monday, 02 November 2021, the accused launched an
application for a special
entry of irregularity or illegality in
terms of section 317 of the CPA. Alleging that
inter alia
,
that he did not enjoy the right to a fair trial and consequently
seeks that the matter be set aside and remitted to start
de novo
before a new presiding judge. The respondent opposed the application
and submitted that such application is not made
bona fide
and
that it is frivolous or absurd, and that the granting of such an
application would be an abuse of the process of court.
[18]
I do not intend dealing with the merits of the application in this
judgment, for the sake of
brevity and to avoid unnecessary prolix, as
I handed down a detailed judgment in respect of the aforementioned
application on Thursday,
11 November 2021.
I
pause to mention that I accordingly found, inter alia, as follows:
[a]
“
[61]    I find that the so-called
irregularities relied upon did not qualify because they all concerned
an attack
on a ruling made by the court during the proceedings, and
they do not relate to irregularities that affect the trial that do
not
appear from the record.
[b]
[64]      I find that the application for
special entry of irregularity or illegality has been introduced
as a
red herring in this trial”.
I
concluded,
inter
alia
,
“
[63]
Having
considered the application, as well as the nature of the alleged
irregularity, and the fact that the application is in respect
of an
interlocutory matter dealing with the failure of the accused to
attend court and his initial undisclosed medical condition,
and which
is totally unrelated to the evidence led in the main trial, I am
impelled to conclude that the application is not made
bona fide, is
frivolous and absurd and that the grant of the application based on
the allegations contained therein would be an
abuse of the process of
the court”.
[2]
Accordingly,
having taken the view that the applicant failed to satisfy the
requirements set out by the Supreme Court of Appeal
in
S
v Nkabinde
2017
(2) SACR 431
(SCA)
,
I refused the application for special entry of irregularity in terms
of section 317 of the CPA.
[19]
Mr De Necker informed the Court that he required time to take further
instructions regarding
the aforementioned judgment and order of this
Court. Further, that he was unable to get hold of his instructing
attorney at that
stage. Accordingly, it was agreed that this matter
be postponed to Friday,

19 November 2021, in order for the defence to advise regarding its
position in respect of the judgment of this Court. Upon resumption,

Mr de Necker informed the Court that the accused was not going to
note an appeal against the judgment, and accordingly the matter
could
be set down for further hearing.
[H]
EVIDENCE
[20]
Upon resumption on Monday, 10 January 2022 the State called the
following witness in support
of it’s case:
[20.1]
Lieutenant Colonel Dorcas Mbali Mavimbela
(‘Mavimbela’),
a member of the SAPS and the Provincial Co-Ordinator: Social Work
testified,
inter alia
, as follows:
[a]
The investigating officer referred Khenso Matsane (‘Matsane’)
for her
to provide an expert report as to whether the child would be
able to testify in court.
[b]
She duly conducted two forensic assessment sessions with Matsane, and
obtained a detailed
history from him.
[c]
Her forensic competency report was duly handed in as

Exhibit “G”, and wherein she recommended that Matsane
testifies with the assistance of an intermediary in terms of
section
170A of the CPA. In support thereof submitting that he will suffer
undue mental stress, and it would have a negative impact
upon him, if
he testified without an intermediary.
That
in essence concluded the evidence of Mavimbela. Having carefully
considered the report as well as her viva voce testimony,
I ruled
that the provisions of section 170A apply, and accordingly ordered
that an intermediary be appointed for Matsane.
Accordingly,
Ms Miranda Mhlanga (‘Mhlanga’), a full time intermediary,
was appointed and the evidence of Matsane proceeded,
after having
duly satisfied myself that Mhlanga was properly qualified, and
competent to act as an intermediary. I pause to mention
that I do not
deem it necessary to appraise her evidence, as it simply dealt with
her qualifications and competence, and which
was not disputed by the
parties.
[20.2]
Kenso Matsane
(‘Matsane’), the deceased’s 15
(fifteen) year old biological son and accused’s stepson
testified, inter
alia, as follows:
[a]
On 14 May 2020 at 15h00, he was in his bedroom. At that stage the
accused, his siblings
and Nkosi were all present at home. The
deceased was still at work and arrived at home between 16h30 –
17h00.
[b]
The accused was in the guestroom, and he observed that the deceased
did not enter
therein, but proceeded to her bedroom in order to pray.
The accused then approached the deceased and requested her to join
him
outside, as he wanted to speak to her. He saw them proceed
outside and where they remained speaking for a period of five to ten

minutes. He was able to hear their voices, but could not hear their
conversation.
[c]
The accused then returned to the house alone, and proceeded to the
guestroom where
he spent a few minutes therein. The accused had to
pass his bedroom in order for him to gain access to the guestroom.
The accused
emerged a short while later and proceeded to walk past
his room, at a hurried pace.
At
this stage, he heard the cocking of a firearm. Having heard the
cocking of the firearm, he immediately proceeded to follow the

accused to the garage. He did so, because he heard the cocking of the
firearm and was suspicious as to what was going on. As he
reached the
garage door, he observed that the accused had closed it with a remote
control, and therefore this prevented him from
proceeding further.
[d]
He returned to his bedroom and peeped through the window, but was
unable to see them.
He then busied himself with his mobile phone. A
short while later, he heard the deceased screaming out his name –
“Aah
Kenso”. He asked his brother if he had heard their
mother screaming, and to which he said that he did not. He then
proceeded
to Nkosi, and made the same enquiry, and to which he was
told that she did not hear anything. He thought that he was hearing
things.
Whilst returning to his bedroom, he heard gunshots.
[e]
He went out of the kitchen door and heard more gunshots. He proceeded
to the main
gate and observed the deceased on the floor, gasping for
breath. He did not see the accused at this stage. He ran back into
the
house and immediately contacted the deceased’s younger
sister. He thereafter proceeded outside, jumped the wall and awaited

the arrival of the ambulance.
[f]
During cross examination he was adamant that he heard the cocking of
the firearm
whilst the accused walked past his bedroom to the outside
of the house, and that it was not a figment of his imagination.
That
in essence concluded the evidence of, Matsane.
[20.3]
Warrant Officer Francois Viljoen
(‘Viljoen’), a
member of the SAPS, stationed at the Cyber Crime Unit, Mpumalanga
with 32 (thirty two) years of service
testified,
inter alia
,
as follows:
[a]
On 29 January 2021 at 11h25, he received a sealed forensic bag (PAD
500115791), from
the investigating officer, and which contained a
Huawei VOG-L29 mobile cellphone, in order to conduct a forensic
download of data
relating to Nelspruit CAS 180/05/2020.
[b]
He duly conducted logical and file system downloads of the phone, but
was unable to
extract any data relating to WhatsApp messages, as a
physical extraction of data was not supported by the device. He
accordingly
used an external USB camera module and captured images of
WhatsApp conversation data from the device relating to conversations
with the WhatsApp user Tersia Marshall Attorneys with cellular number
0825768889.
[c]
The WhatsApp conversation data,
inter alia
, included the
following:
(i).
On 10 May 2020 at 19h01, 19h02 and 19h03 – “Good
evening Tersia. My life is at risk in this house. Witchcraft is
taking
part in this house and he will not stop until he gets what he
wants. Please advise me. I think we should get an interdict to keep

him away from home. We should I now fear for my life”.
(ii)
On 10 May 2020 at 19h08, 19h12 and 19h13 – “Are you
available tomorrow to go to court? Okay, We can go at 14h00.
It
should be quiet then. Okay”.
(ii).
On 11 May 2020 at 12h59 and 13h00  – “ Hi, T
Received funds. Will proceed now. Copy of Antenup arrived this
morning”.
That
in essence concluded the evidence of this witness, Viljoen.
[20.4]
Suzan Sibongile Sibuyi
(‘Sibuyi’), the deceased’s
maternal aunt a.k.a Mama Bongi testified,
inter alia
, as
follows:
[a]
She was the first one to arrive on the crime scene on Thursday, 14
May 2020. She confirmed
that she had earlier spoken to the deceased
during the day.
[b]
She stated that the deceased had and used two cellphones. She saw the
one cellphone
in the deceased’s handbag that was lying on top
of the bed, in the main bedroom. She later learnt that the deceased’s

other cellphone was found in her possession, and where she was lying
after being shot.
[c]
She subsequently was allowed by members of the SAPS to enter the
house, and proceeded
to the main bedroom. She observed a firearm
holster on the floor, near the entrance of the door, and observed
clothes scattered
on the floor.
That
in essence concluded the evidence of this witness, Sibuyi and the
case for the State was accordingly closed. On Tuesday, 11
January
2022 at 17h30, the matter was further postponed to 28 March 2022 for
the defence case.
[21]
Upon resumption on Monday, 28 March 2022, Mr De Necker informed the
court that the accused would
not be testifying in his defence, and
his case was accordingly closed.
[I]
EVALUATION OF EVIDENCE
[22]
It is trite that in order to succeed with the prosecution, the State
has to discharge the onus
to establish the guilt of the accused
beyond reasonable doubt, and on the other hand the accused bears no
onus but will be entitled
to a discharge if he presents an
explanation of innocence which is reasonably possibly true. This
trite legal test is more succinctly
and elegantly stated by Nugent JA
in
S
v Mbuli
[3]
as follows:
‘
It
is trite that the State bears the onus of establishing the guilt of
the appellant beyond reasonable doubt, and the converse is
that he is
entitled to be acquitted if there is a reasonable possibility that he
might be innocent. In whichever form the test
is applied it must be
satisfied upon a consideration of all the evidence’.
‘
An
accused version can only be rejected if the court is satisfied that
it is false beyond reasonable doubt. An accused is entitled
to an
acquittal if there is a reasonable possibility that his or her
version may be true. A court is entitled to test an accused’s

version against the improbabilities. However, an accused’s
version cannot be rejected merely because it is improbable’.
[4]
[23]
In
S v Shackell 2001(2) SACR 185 SCA
it was held that “
it is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable
doubt and that a mere
preponderance of probabilities is not enough. Equally enough is the
observance that, in view of this standard
of proof in a criminal
case, a court does not have to be convinced that every detail of the
accused’s version is true. If
the accused’s version is
reasonably possibly true in substance the court must decide the
matter on the acceptance of that
version. It is indeed permissible to
test the accused’s version against the inherent probabilities.
It cannot be rejected
merely because it is improbable: it can only be
rejected on the basis of inherent probabilities if it can be said to
be so improbable
that it cannot reasonably possibly be true.”
[24]
In assessing the evidence, a court must in the ultimate analysis look
at the evidence holistically
in order to determine whether the guilt
of the accused is proved beyond reasonable doubt. This does not mean
that the breaking
down of the evidence in its component parts is not
a useful aid to a proper evaluation and understanding thereof. In
S
v Shilakwe
[5]
at
page 20, para [11], the Supreme Court of Appeal approved of the
following
dictum
:
“
But
in doing so, (breaking down the evidence in its component parts) one
must guard against a tendency to focus too intently upon
the separate
and individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in the trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it  is necessary
to step back a pace and consider the mosaic as a whole. If that is
not done, one
may fail to see the wood from the trees.”
See
S
v Hadebe and others
[6]
and
S
v Mbuli
[7]
.
[25]
It is acceptable in evaluating the evidence in its totality to
consider the inherent probabilities.
Heher AJA (as he then was) dealt
with this aspect as follows:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his 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.”
See
S
v Chabalala
[8]
.
[26]
I am mindful of the basic principles to be applied when evaluating
evidence. In this regard,
it is trite that evidence must be weighed
in it’s totality and that probabilities and inferences must be
distinguished from
speculation and conjecture.
Navsa
JA in
S
v Trainor
[9]
stated
as follows: “A conspectus of all the evidence is required.
Evidence that is reliable should be weighed alongside such
evidence
as may be found to be false. Independently verifiable evidence, if
any, should be weighed to see if it supports any of
the evidence
tendered. In considering whether evidence is reliable, the quality of
that evidence must of necessity be evaluated,
as must corroborative
evidence, if any. Evidence, of course, must be evaluated against the
onus on any particular issue or in respect
of the case in it’s
entirety”
[27]
The quote from the judgment of Malan JA in R v Mlambo
[10]
at 738 A and B is apposite:
‘
In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown 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
charged. He must, in other words, be morally certain of the guilt of
the accused. An accused’s claim to the benefit
of doubt when it
may be said to exist must not be derived from speculation but must
rest upon a reasonable inference which are
not in conflict with, or
outweighed by, the proved facts of the case. Moreover, if an accused
deliberately takes the risk of giving
false evidence in the hope of
being convicted of a less crime or even, perchance, escaping
conviction altogether and his evidence
is declared to be false and
irreconcilable with the proved facts; a court will, in suitable
cases, be fully justified in rejecting
an argument that,
notwithstanding that the accused did not avail himself of the
opportunity to mitigate the gravity of the offence,
he should
nevertheless receive the same benefits as if he had done so’.
[28
]
Having carefully considered the totality of the evidence and the
mosaic of proof before me, as well
as the plea of the accused in
terms of section    112 (2) of the CPA, I do not deem
it necessary to individually
traverse the evidence of all the
witnesses that testified during the trial, for the sake of brevity
and to avoid unnecessary prolix.
[29]
It is common cause that the accused unlawfully and intentionally
caused the death of the deceased
on 14 May 2020 by shooting her with
a firearm, as set out in his guilty plea. However, in dispute is
whether the accused had planned
and had acted with premeditation at
the time of the shooting of the deceased. It is clear that this is
the crisp and narrow question
that has to be answered, having due
regard to the available evidence before this Court.  I pause to
mention that there are
no eye-witnesses who actually witnessed and
overheard the conversation between the parties, and who were outside
at the time with
the parties, at the time of the shooting.
Hence,
the State has relied to a certain extent on circumstantial evidence,
the evidence of the various State witnesses in support
of the mosaic
of proof against the accused, the accused’s guilty plea, as
well as the objective medico legal and cellphone
evidence; in order
to prove the allegations against the accused, and in an attempt to
prove it’s case against the accused.
I am therefore required to
objectively and in an impartial and balanced manner, consider all the
evidential material in coming
to a decision.
[11]
[30]
It is trite that once a court is faced with circumstantial evidence
it naturally flows that it
is duly called upon to draw inferences
from the evidence thus presented.
“
In
reasoning by inference there are two cardinal rules 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 doubt whether
the inference sought to be drawn is correct.”
[12]
[31]
The value of circumstantial evidence is often found in a whole range
of independent circumstances,
all giving rise to the same conclusion.
It is imperative for the court to consider all these circumstances as
a whole and not to
assess each in isolation.
“
The
court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way, the
Crown must satisfy the court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.”
[13]
[32]
In De Villiers supra at 508 it is said: “…even two
particles of circumstantial evidence-though
taken by itself weigh but
as a feather – join them together, you will find them pressing
on the delinquent with the weight
of a millstone….”
[33]
Circumstantial evidence is indirect proof from which a court is
required to draw inferences which,
when weighed with all other
evidence, may contribute towards proving a fact in issue. The
inference must comply with certain rules
of logic.
[14]
The reasonable inference has to be drawn only from proved facts and
not from facts based on suspicion.
[15]
Circumstantial
evidence has on occasion been described as a chain, the links of
which consist of pieces of evidence. This is not
correct as it
implies that the chain will be broken once one piece of evidence is
rejected. It is better to compare it with a braided
rope: as the
strands break, the rope weakens and conversely, as strands are added,
the stronger it gets. The gist of the matter
is that one piece of
circumstantial evidence may be inconclusive, but once other evidence
is added, it gains probative force.
[34]
The
ratio
of Hendricks J in
S v Nkuna
2012 (1) SACR 167
(B)
sets out the approach to circumstantial evidence, at paragraph 121 as
follows:
“
The
evaluation of circumstantial evidence must be guided by a test of
reasonableness. The onus on the State is not that it must
prove its
case with absolute certainty or beyond a shadow of a doubt. All that
is required is such evidence as to satisfy the court
and prove its
case beyond a reasonable doubt. It is trite law that the accused is
under no legal obligation to prove his innocence.
The State must
prove the guilt of the accused beyond a reasonable doubt”.
[35]
It is noteworthy to mention that from the totality of the available
evidence, it is clear that
the testimonies of Nkosi, Marshall,
Hlongwane and Matsane are of utmost importance, and in my view their
testimonies, both direct
and circumstantial, require to be distilled
in order to ultimately make a determination regarding the
circumstances of the shooting,
and objective intention of the accused
at the time of the shooting. It is clear that an examination of the
evidence of the aforementioned
would enable this Court to make a
proper determination in respect of the vexing question regarding the
intention of the accused
at the time of the shooting of the deceased.
In my view, the simple question is whether the accused had acted in
the heat of the
moment and with diminished responsibility as set out
in his guilty plea, or whether he acted with an element of planning
and premeditation.
This in the final analysis is what matters, and
what is required of this Court to grapple with.
[36]
I deem it important that in order to arrive at a conclusion regarding
the aforementioned, it
is necessary to make a comparative analysis of
the accused’s guilty plea, and to compare it with the evidence
of the aforementioned
four witnesses.
[a]
The accused stated,
inter alia
, that he became overwhelmed
when he learnt that the deceased had yet another new boyfriend, on
the day of the incident. As a result
of the shock and emotional blow
he drew his firearm and fired several shots at the deceased. He
committed the crime in the heat
of the moment, when he was
emotionally charged, and acted with diminished responsibility and
impaired judgment. Denying that he
planned to kill the deceased.
[b]
Nkosi testified,
inter alia
, that upon the arrival of the
deceased at home, she did not enter the guestroom as the accused was
therein. The accused requested
the deceased to accompany him outside
in order to have a discussion. At this stage, he stopped the children
from accompanying them
outside. A short while later he returned to
the guestroom alone, and thereafter proceeded outside again. A while
later she heard
Matsane saying “What are you doing with my
mum?”, and when she followed him to his room, saw the accused
holding a
firearm and shooting the deceased.
[c]
Marshall testified that on 02 May 2022, the deceased had instructed
her to proceed
with instituting an action for a decree of divorce.
The deceased informed her that the accused was aware of the divorce
action,
as he had discussed the matter with his family. In addition
thereto, the deceased had discussed with her during the interim to
obtain an interdict against the accused. Further, sending her a
WhatsApp message advising that she was scared for her life. Her

evidence is corroborated by the objective and undisputed evidence
contained in Exhibit “J”.
Further,
what is most telling and decisive is her evidence to the extent that
she was speaking to the deceased on the telephone
regarding obtaining
an interdict against the accused, when she heard the deceased
screaming, followed by two loud bangs and the
conversation ended.
Against this evidence, one notes that the accused in his plea stated
that the deceased was speaking to a boyfriend
at the time, and as a
result thereof lost control and shot the deceased several times.
[d]
Hlongwane testified that the deceased informed her, in a WhatsApp
message that she
was no longer happy in her marital relationship with
the accused, and wished to institute divorce proceedings against him.
[e]
Matsane testified that he saw the deceased leave her bag in the
bedroom upon her arrival
from work, and did not enter the guestroom
to pray when she saw the accused therein. He heard the accused
requesting the deceased
to accompany him outside, so that they could
speak privately. He observed his parents go outside, and where they
remained in conversation
for a period of between five to ten minutes.
The
accused then returned to the guestroom and spent a few minutes
therein. A short while later when the accused emerged, he proceeded

in a hurried manner, and he clearly heard the accused cocking the
firearm. He followed the accused as he believed that something
was
awry, however he was unable to do so, as the accused closed the
electric garage door with a remote control. A short while later,
he
heard his mother scream his name and thereafter heard gunshots, as he
was proceeding to his bedroom.
[37]
I am mindful of the fact that the witness Marshall is a single
witness in respect of the instructions
that she received from the
deceased. However, it is clear that her evidence does not stand in
isolation as it is corroborated by
the evidence contained in Exhibit
“J”, and that of Hlongwane.
I
am also mindful of the fact that the evidence of Matsane stands in
isolation as regards the cocking of the firearm, at the time,
and
after the accused emerged from the guestroom and proceeded to the
outside. However, I am reminded of Nkosi’s evidence
wherein she
confirms that the accused had returned to the guestroom alone, and
proceeded a short while later, outside. This in
my view lends
corroboration, supports and underpins Matsane’s evidence
regarding the firearm that he heard being cocked,
at the time when
the accused had come into the house from outside, and later returned
outside.
[38]
Accordingly, I am mindful that the evidence of the witnesses to an
extent stand singularly on
certain aspects, and are corroborated on
others. To this end, the most important evidence in my view is the
cocking of the firearm
by the accused, whilst inside the house and
which only Matsane heard. It therefore follows that his evidence is
to be treated with
caution, and is governed by the provisions of
section 208 of the CPA, and which provides as follows:
“
an accused
may be convicted of any offence on the single evidence of any
competent witness”.
[39]
In
S
v Sauls
1981 (3) SA 172
(A) at 180E-H
Diemont
JA said: ‘
There is no rule of
thumb test or formula to apply when it comes to a consideration of
the credibility of the single witness (see
the remarks of Rumpff JA
in S v Webber
1971 (3) SA 754
(A) at 758). The trial Judge will weigh
his evidence, will consider its merits and demerits and, having done
so, will decide whether
it is trustworthy and whether, despite the
fact that there are shortcomings or defects or contradictions in the
testimony, he is
satisfied that the truth has been told. The
cautionary rule referred to by De Villiers JP in 1932 may be a guide
to a right decision
but it does not mean "that the appeal must
succeed if any criticism, however slender, of the witnesses' evidence
were well
founded"(Per Schreiner JA in R v Nhlapo (AD 10
November 1952) quoted in R v Bellingham
1955 (2) SA 566
(A) at 569).
It has been said more than once that the exercise of caution must not
be allowed to displace the exercise of common
sense.’
See
also
AS v S (349/10)
[2011] ZASCA 52
(30 March 2011);
S
v Pistorius
2014 (2) SACR 315
(SCA)
[40]
In
S v Banana
2000 (2) SACR 1
(ZSC)
at 8b-c the Court held as
follows: “
Where the evidence of a single witness is
corroborated in any way which tends to indicate that the whole story
was not concocted,
the caution enjoyed may be overcome and acceptance
facilitated. But corroboration is not essential. Any other feature
which increases
the confidence of the court in the reliability of the
single witness may also overcome the caution”
[41]
Accordingly, I have carefully listened to the evidence of Matsane and
taken cognisance of his
conduct and behaviour when he testified, and
it is clear in my mind that his evidence clearly has a ring of truth.
I did not gain
the impression at any stage that this witness had come
to falsely implicate the accused in the commission of the crime. He
gave
his evidence in a clear, concise and uncontradicted manner, and
in my view was an impressive witness. In addition thereto, I have

duly taken cognisance of the veracity of the evidence of Nkosi,
Marshall and Hlongwane, and find in the same terms as I did regarding

Matsane’s evidence.
The
accused on the other hand did not take the Court into his confidence,
and closed his case without testifying. Accordingly, he
failed to
convince this Court regarding the veracity of his denial in respect
of the allegation against him.
[42]
In
S v Di Blasi
1996 (2) SACR 1
(A)
, the accused was aggrieved
and insulted by his wife’s decision to divorce him, he shot her
three times. On appeal by the
State, the Appellate Division found
that it was necessary for the accused to lay a factual foundation
that non-pathological causes
resulted in diminished criminal
capacity, and the fact that he did not give evidence reduced the
weight of expert evidence given
on his behalf. This was so because
the expert evidence was based on the assumption that the accused’s
version was truthful.
The objective facts however showed no signs of
inability to appreciate the wrongfulness of the killing and the
actions of the accused
did not lead to an inference of diminished
criminal capacity.
See:
S v Calitz
1990 (1) SACR 119
(A)
S v
Mc Donald 2000 (2) 493 (N)
S v
Eadie
2002 (1) SACR 663
(SCA
[43]
To this end, it is clear on the available evidence before me that
there is a prima facie case,
which the accused has had to answer to.
However, having duly exercised his legal right to silence, he has
failed to answer thereto.
Further, it is clear that what counsel put
on his behalf during the cross examination of the witnesses, is not
evidence. See
S v Bhamjee
1993 (1) SA 627
(W)
. Accordingly,
the State’s case stands unchallenged before this Court, as
there is no version before me on behalf of the accused.
[44]
In Osman and Another v Attorney General Transvaal
1998 (4) SACR
1224
(CC)
Madala J stated the following at paragraph 50
:
“
Our legal system is an adversarial one, once the
prosecution has produced evidence sufficient to establish a prima
facie case, an
accused who fails to produce evidence to rebut that
case is at risk. The failure to testify does not relieve the
prosecution of
its duty to prove guilt beyond reasonable doubt. An
accused however, always runs the risk that, absent any rebuttal, the
prosecution’s
case may be sufficient to prove the elements of
the offence. The fact that an accused has to make such an election is
not a breach
of the right to silence. If the right to silence were to
be so interpreted it would destroy the fundamental nature of our
adversarial
system of criminal justice’’
[45]
In S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC) Langa DP
stated the
following at paragraphs 293D – F, as follows: “
The
right to remain silent has application at different stages of a
criminal prosecution. The fact that an accused person is under
no
obligation to testify does not mean that there are no consequences
attaching to the decision to remain silent during the trial.
If there
is evidence calling for an answer, and an accused person chooses to
remain silent in the face of such evidence, a court
may well be
entitled to conclude that the evidence is sufficient in the absence
of an explanation to prove the guilt of the accused.
Whether such a
conclusion will be justified will depend on the weight of the
evidence”.
[46]
I pause to mention that upon a conspectus of all the direct and
circumstantial evidence before
me, and having distilled all the
common cause facts, it is clear in my mind that the only aspect to be
finally adjudicated upon
is whether to accept the version as put
forward by the accused in his plea, or to accept that of the State.
To
this end, I reiterate that the State witnesses subjected their
evidence to scrutiny and cross examination, whilst the accused
chose
to lay thunderously silent in the face of direct evidence regarding
his intention, on the day in question. I am impelled
to accept
Matsane’s evidence regarding the cocking of the firearm in the
house by the accused, and before the shooting of
the deceased. I am
further impelled to accept Marshall’s evidence regarding the
nature of her conversation with the deceased
at the time of the
shooting
[47]
Accordingly, on the available direct and circumstantial evidence
before me, the inescapable inference
and conclusion to be drawn from
all the proved facts, in my view and as I am impelled, is as follows:
[a]
The accused and deceased experienced marital strife, which ultimately
caused the deceased
to duly instructed her attorney, to proceed with
divorce action against the accused.
[b]
The accused was aware of the deceased’s intention to divorce
him, as he had
discussed the matter with his family.
[c]
The accused was aggrieved by this turn of events, regarding the
deceased’s intention
to divorce him, and more so due to the
dire financial implications accruing to him, which would have been
caused as a result of
the divorce.
[d]
That the accused being aggrieved made the circumstances difficult at
home, and which
caused the deceased to consider applying for an
interdict, and to feel scared for her life.
[e]
The accused and deceased proceeded outside their home to speak
privately for a period
of between five to ten minutes, at the
accused’s special instance. At this stage, he was not in
possession of his firearm,
as per Nkosi.
[f]
At a certain stage during the conversation the accused then returned
to the
guest room, and the only reason being to arm himself with his
firearm, as he did not have it in his possession initially. I am
impelled to infer and conclude that his planning and premeditation to
kill the deceased commenced at the time when he left the deceased,

and returned to the guest room, in order to fetch his firearm.
To
this end, I am reminded that a finding of premeditation requires
inferential reasoning, and the trier of facts has to interrogate
the
facts of each case and then deduce from them whether the commission
of the offence was premeditated or not. That is partly
due to the
legislature not having defined ‘planned’ or
‘premeditated’ in the
Criminal Law Amendment Act, Act
105
of 1997.
[16]
[g]
Upon his exit from the guest room, he was duly armed with his firearm
and thereafter
cocked it. The only logical inference to be drawn from
this conduct is that there was now premeditation on his part to kill
the
deceased, when he cocked the firearm inside the house, and prior
to shooting her several times.
I
am of the view that the planning and premeditation were complete at
the time when the accused consciously held the firearm and
cocked it,
inside the house. This action in my view is a clear intention and the
culmination on his part of his intention to return
to the accused,
and to kill her.
[h]
I am of the view and am impelled to conclude that the accused’s
intention to
kill the deceased commenced when he returned to the
guest room in order to collect the firearm, and was finalised with
the conscious
and intentional cocking of the firearm. His resolve was
finalised and completed at the time when the first bullet entered the
chamber,
ready to be discharged and to cause the untimely death of
the deceased. Nothing more! Nothing less!
[i]
It is clear that at the time when the deceased was fatally shot by
the accused,
she was engaged in a conversation with her attorney, in
respect of an application for an interdict against him; and was not
talking
to a boyfriend as the accused would like this Court to
believe. The inescapable inference to be drawn from this is that this
conversation
further fortified his resolve to kill the deceased, and
to rid him from the insurmountable challenge of the divorce, which he
faced.
[j]
I further infer that the accused simply wanted to create atmosphere
and
to evoke sympathy in order to support his narrative of the
events, and yarn that he intended spinning, by shooting himself. I
say
so on the basis that if the accused wanted to end his life he
would have shot himself fatally, having due regard to the fact that

he was a police officer, and upon his resignation being involved in
the security business.
[48]
In
S v Kekana
2013 (1) SACR 101
(SCA)
it was held that
“
premeditation
does not necessarily entail that the accused should have thought or
planned his or her action for a long period of
time in advance before
carrying out his or her plan. This is because ‘ even a few
minutes are enough to carry out a premeditated
action’.”
Accordingly,
it is clear on the available evidence that the accused spoke to the
deceased for a short while before returning to
the house in order to
arm himself, and to return to the deceased with the clear intention
to shoot and kill her.
[49]
I now turn to deal with the red herring raised by Mr De Necker during
argument to the extent
that the accused has been charged with the
crime of Murder read with the provisions of
section 51(1)
of Act 51
of 1997. Submitting further that the accused has not been properly
charged in terms of
section 51(1)
of the
Criminal Law Amendment Act
105 of 1997
. I have duly applied my mind to the authority cited by
the defence in
S v Makatu
2014 (2) SACR 539
(SCA)
, as well as
his argument that in the circumstances of this anomaly that the
accused can only be convicted in terms of
section 51(2)
of Act 105 of
1997 (per his plea), as he is not properly charged under any other
section.
[50]
In
S v Legoa
2003 (1) SACR 13
SCA
, in considering whether the
increased sentencing jurisdiction provided for by Act 105 of 1997
could be invoked against an accused,
the court dealt with the related
question of whether the charge sheet should include reference to the
specific form of the offence
which triggered the increased sentencing
jurisdiction. It noted ‘that under the new constitutional
dispensation, the criterion
for a just criminal trial is “ a
concept of substantive fairness which is not to be equated with what
might have passed muster
in our criminal courts before the
Constitution of the Republic of South Africa, Act 108 of 1996 came
into force.”
Cameron
JA went on to say that one of the specific rights constituting the
right to a fair trial is the right: “
to be informed of the
charge with sufficient detail to answer it.” What the ability
to “answer” a charge encompasses
in this case does not
require us to determine. But under the constitutional dispensation it
can certainly be no less desirable
than under the common law that the
facts the State intends to prove to increase sentencing jurisdiction
under the 1997 statute
should be clearly set out in the charge
sheet.”
[51]
In
S v Ndlovu
2003 (1) SACR 331
(SCA)
it was held that the
relevant sentence provisions of the Act must be brought to the
attention of an accused in such a way that
the charge can be properly
met after conviction. Mpati JA, after referring to S v Legoa (supra)
said the following: “
The enquiry, therefore, is whether, on
a vigilant examination of the relevant circumstances, it can be said
that an accused had
had a fair trial. And I think it is implicit in
these observations that where the State intend to rely upon the
sentencing regime
created by the Act a fair trial will generally
demands that its intention pertinently be brought to the attention of
the accused
at the outset of the trial, if not on the charge sheet
then in some other form, so that the accused is placed in a position
to
appreciate properly in good time the charge that he faces as well
as it’s possible consequences. Whether, or in what
circumstances,
it might suffice if it is brought to the attention of
the accused only during the course of the trial is not necessary to
decide
in the present case. It is sufficient to say that what will at
least be required is that the accused be given sufficient notice
of
the State’s intention to enable him to conduct his defence
properly.”
[52]
On a proper reading and interpretation of the indictment, and to
which the accused pleaded to
on 04 October 2021 at 10h40, it is clear
that despite the indictment stating that the “accused is guilty
of the crime of:
Murder read with the provisions of
Section 51(1)
of the
Criminal Law Amendment Act 51 of 1997
….. “ ,
the
following qualification was brought to the attention of the accused
as follows: “
In case of conviction, the said Director of
Public Prosecutions prays for a sentence in terms of the provisions
of
section 51(1)
read with
Part 1
of Schedule 2 of the Criminal Law
Amendment Act, 1997 (Act 105 of 1997) in that the murder of the
deceased was planned and/or premeditated”.
In
amplification thereof, the entire indictment was read to the accused
and interpreted to him, and to which he pleaded not guilty.
In
addition thereto, at 10h50, this Court carefully explained the
provisions, application and implications of the Criminal Law

Amendment Act No. 105 of 1997 (‘Minimum Sentences Act’),
as well as the seriousness thereof. The accused confirmed
that he
accordingly understood the provisions of the aforementioned Act.
[53]
Therefore, it is clear in my mind that at all material times, the
accused was properly appraised
in respect of the sentencing regime
applicable, in the event of a conviction; both in the narrative in
the indictment, as well
as by this Court in a further detailed
explanation, and prior to any evidence being led. It is clear in my
mind that it was simply
a typographical error in respect of the
reference to the
Criminal Law Amendment Act, which
has caused
absolutely no prejudice to the accused, and the ultimate conduct of
his trial and defence.
[54]
The ultimate result of this vexing and baseless argument, is that the
accused was full well appraised
of this fact from the outset, and
that he clearly enjoyed the right to a fair trial. Further, it is
clear from the evidence led,
and an undisputed fact, that his defence
was conducted with the absolute appreciation of the fact that it was
alleged that the
murder of the deceased was planned and/or
premeditated.
[55]
This view is further fortified by the fact that during the early
stages of this trial, the accused
changed his plea to one of guilty
in terms of
section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
, and which was not accepted by the State. The State refused to
accept the plea, as it alleged that the murder of the deceased was

planned and/or premeditated. I pause to mention that at no stage was
any cause of complaint raised in this regard by the accused,
or his
legal representative.
Accordingly,
I am of the considered view that there is simply no merit and sound
justification in this baseless argument, and as
such stands to be
summarily dismissed.
[56]
I have carefully listened to the evidence of the State witnesses, and
taken cognisance of their
conduct and behaviour when they testified,
and it is clear in my mind that their evidence clearly has a ring of
truth. I did not
gain the impression at any stage that the witnesses
had come to falsely implicate the accused in the commission of the
crime. All
the State witnesses gave their evidence in a clear,
concise and uncontradicted manner, and in my view were impressive
witnesses.
[57]
I have carefully analysed the evidence before me and applied the
necessary caution where required,
and accordingly am unable to find
any reason to doubt the
ipsissima verba
of the State
witnesses. They gave their evidence in a clear and concise manner
without any material contradictions. On the other
hand the accused
has not tendered any viva voce evidence, and I have duly taken note
of the contents of his guilty plea. His version
seemed to be very far
fetched on the available evidence, and on any analysis of his
evidence it simply cannot be believed, that
the murder of the
deceased was not planned or premeditated.
[58]
After careful consideration of the evidence of all the State
witnesses, the totality of the circumstantial
evidence in support of
the charges, as well as the accused’s version of the events, I
am satisfied that the evidence of the
State is sufficient to prove
that the accused planned, and that there was premeditation on his
part to murder the deceased.
[59]
I have weighed all the elements that point towards the guilt of the
accused against those which
are indicative of his innocence, taking
proper account of the inherent strength and weaknesses, probabilities
and improbabilities
on both sides, and having done so, I find that
the balance weighs so heavily in favour of the State, so as to
exclude any reasonable
doubt of the accused’s guilt,
[60]
In conclusion, I find that on a consideration of the totality of the
evidence the prosecution
has discharged the onus to prove beyond
reasonable doubt that the accused has committed the crime as charged.
On the other hand
the accused has failed to give an explanation of
innocence which is reasonably, possibly true and his version is
accordingly rejected
as beyond false.
[61]
It is accordingly clear in my mind that the action of the accused was
in accordance with the
requisite intention of
dolus directus
,
and that he acted with an element and degree of planning and
premeditation at the time of the shooting of the deceased.
[62]
In the result, the accused is found guilty as follows:
[a]
MURDER READ WITH THE PROVISIONS OF SECTION 51(1) OF ACT 105 OF
1997
C
I MOOSA
JUDGE
OF THE HIGH COURT
MPUMALANGA
DIVISION
MBOMBELA
FRIDAY,
24 JUNE 2022
Counsel
for State:                                  Adv

M R Molatudi
Instructed
by:                                         Director

of Public Prosecutions
Mbombela,
Mpumalanga
Tel:
0130450648/32
Counsel
for Accused:
Adv
P J De
Necker
Attorney
for applicant:                          Mr

Coert Jordaan
Instructed
by:                                         Coert

Jordaan Attorneys Inc
Corner
House
Cnr
of Nel & Russel Streets
Mbombela,
Mpumalanga
Tel:
0137524736
Dates
of hearing               04
October 2021
06
October 2021
07
October 2021
08
October 2021
11
October 2021
13
October 2021
14
October 2021
02
November 2021
11
November 2021
19
November 2021
10
January 2022
11
January 2022
28
March 2022
29
March 2022
06
April 2022
30
May 2022
24
June 2022
Heads
to be filed on:        29
March 2022
Date
of judgment:             24
June 2022
[1]
DPP:
Gauteng Division, Pretoria v Mbonani
[2020] ZASCA 115
(30/09/2020)
[2]
Pages
29 and 30, paragraphs 61, 63 and 64 of the judgment
[3]
2003
(1) SACR 97
(SCA); See also S v Trickett
1973 (3) SA 526
(T)
[4]
Susha
v S 2011 JOL 27877 (SCA)
[5]
2012
(1) SACR 16 (SCA)
[6]
1998
(1) SACR 422
(SCA) at 426 F – H
[7]
2003
(1) SACR 97
(SCA) at 110, para [57]
[8]
2003
(1) SACR 134
(SCA) paragraph [15]
[9]
2003
(1) SACR 35
(SCA) at 9
[10]
1957
(4) 727 (AD)
[11]
S
v Ntsele 1998 (2) SACR 178 (SCA)
[12]
S
v Blom
1939 AD 188
at 202; See also S v Mtsweni
1985 (1) SA 590
(A)
at 593
[13]
S
v De Villiers
1944 AD 493
at 508-509
[14]
S
v Burger 2010 (2) SACR 1 (SCA)
[15]
S
v Mseleku 2006 (2) SACR 574 (D)
[16]
Rasimate
Samuel Baloyi v The State
[2022] ZASCA 35
(01 April 2022)