S v Tsabane (CC10/2020) [2021] ZAGPPHC 216 (23 January 2021)

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[2021] ZAGPPHC 216
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S v Tsabane (CC10/2020) [2021] ZAGPPHC 216 (23 January 2021)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA (BENONI)
(1)
REPORTABLE:
YES
/ NO
(2)  OF
INTEREST TO OTHER JUDGES :
YES
/
NO
(3)  REVISED
23/1/2021
CASE
NO
:   CC10/2020
DATE
:
2020.11.23
In the matter
between
THE STATE
and
MANNANA SELINA
TSABANE

ACCUSED
J U D G M E N T
BROODRYK
,
AJ
:    The Court will
now proceed to deliver judgment in the case of the State versus
Mannana Selina Tsabane.
Case No. CC10/2020 in the High Court
sitting here at Benoni.
The accused, a 39-year-old female and a Lesotho
citizen residing at [….] is charged with two counts as per the
indictment
and I quote:
“
Count
1 is that of murder, read with the provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
in that upon or about 18
October 2019 at or near [….] in the District of Benoni,
accused did unlawfully and intentionally
kill Riakgele Langalihle
Mnguni a two year old male.
Count 2:  In that upon or about 18 October 2019 and at or near
[….] in the District of Benoni, the accused did unlawfully
and
of intent to defeat or struck the course of or the administration of
justice, commit an act to wit pretending that she was
attacked by
three males and that the deceased was kidnapped by the same persons
which act defeated or obstructed the course or
administration of
justice”.
Mr Maimela,
before I proceed, I forgot to ask you, you do not require this to be
interpreted at this time?
MR
MAIMELA
:   Not at this time
M'Lord.
COURT
:
At the end when I make the findings that can be interpreted
MR
MAIMELA
:   As the court
pleases.
COURT
:
Very well.
The accused pleaded not guilty and no
section 115
plea explanation was provided.  She exercised her right to
silence.  Mr Maimela on behalf of the accused informed the
court
that the minimum sentence legislation in respect of count 1 was
explained to her.  The accused confirmed this.
The state called 14 witnesses as follows:
(1) Miriam Nomathemba Mnguni, the aunt of the deceased.  (2) Dr
Fortunato Beccia,
the pathologist.  (3) Dr Spencer Brian
Probert, a doctor who treated the accused at the Far East Rand
Hospital.  (4)
Lerato Dora Mnguni, the mother of the deceased.
(5) Tshwarelo Petunia Ntuli, a witness who saw the accused on the
18
th
October 2019 at 14:30.  (6) Timothy Tlohe Kgope, a friend of
Siyabonga.   (7) Bandele Mongai, a friend of Siyabonga.

(8)  Siyabonga Milton Sekumbune, a neighbour implicated by the
accused.  (9) Susan Vilakazi, an aunt of Lerato and the
one who
found the needle.  (10) Mkumusi Patience Tchuma, a court
interpreter who provided a translation of the screen shots
of the
whatsapps sent by the accused, marked EXHIBIT H.  (11) Barry
Phillip Mahlangu, Siyabonga’s uncle and the golf
player.
(12) Dr Sunday Joseph Algabodian, a medical doctor who treated the
accused upon her admission at the Far East Rand
Hospital on the 18
th
October 2019.  (13) Simon Mapusne Nkwane, he testified in
respect of a
section 212
statement, EXHIBIT L, that dealt with the
downloading of the Whatsapps and then lastly, (14) Febe Winnie
Molefe, that is the aunt
of Siyabonga.
The accused testified in her own defence.
The normal admissions were made in terms of the provisions of
section
220
of the
Criminal Procedure Act 51 of 1977
and embodied in a
written document styled EXHIBIT A, wherein the normal admissions were
made, including the causal chain.
It furthermore referred to EXHIBIT B, the
post-mortem report, EXHIBIT C, a photo album of the scene and EXHIBIT
D, a photo album
of where the needle was found was formerly admitted
into evidence.
The following appeared to be common cause or were
not disputed at all:
(1) That the accused was a child minder for the
deceased and had been employed as such by the mother of the
deceased.  She
had been employed as such since 3 April 2018.
See in this regard EXHIBIT G, the service contract.
(2) She had no other domestic duties and was
provided with a bedroom in the house as well as food and sustenance.
According
to the contract, she would be paid R1 800 per month,
but in fact the deceased mother paid her R2 000 a month.
The mother of
the deceased Lerato Mnguni and the aunt Miriam Mnguni worked shifts
at the airport.  If they worked morning shifts,
starting at
05:00, the deceased would sleep with the accused in her bed.
(3) The day before, that is the 17
th
October 2019, the mother of the deceased was not at home.  She
was away on a course.  The aunt who was working morning
shift
the next day, that is the 18
th
October, she got up at 03:30 and was about to leave at 04:45 when she
heard the deceased crying.  She heard the flask clicking
and the
accused giving the baby milk.  The bedroom door of accused was
closed at that stage.
(4) She left the house that is now Miriam Mnguni,
at 05:10.  She locked the door and the security door.  She
and Lerato
returned to the house at 15:40 or 15:50 that same
afternoon.  During the day she called the accused at 10:35 on
the cell phone,
however she could not reach her.
(5) On her returning to home, they found all was
quiet and no one outside.  Usually the accused and the deceased
would be paying
outside.  No one answered when they called.
(6) The burglar door which leads to the house was
closed and locked.  The door itself was closed but not locked.
There
were two sets of keys for the house.  One was held by the
accused and the other one was held by the aunt Miriam.  Miriam

opened the security door.  She saw the keys inside the house on
the floor marked X in photograph 3 of EXHIBIT C.
(9) They walked in screaming and calling out the
name of the deceased, Langalihle.
(10) The aunt and the mother of the deceased
followed each other into the house.
(11) Accused was found in the bedroom.  She
was sitting on the ground next the cupboard.  She was half
naked.  Her
upper body being unclothed.  When the mother
asked her where is the child, the accused said:  “The
child had been
kidnapped.”
(12) The accused complained of stomach cramps and
she was in a crouching position.
(13) The accused had scratch marks on both arms on
the inside as well as on her chest.  The scratches were not deep
and not
bleeding.  On each arm there was more than one, but less
than five per arm.
`
(14) When the aunt asked her where is the child, she stated as
follows:  “I
heard voices of people after you left.
One of the voices was that of Siyabonga, a neighbour.  She
opened the door.
Siyabonga was in the company of two other
males.  They then overpowered her and pushed her away.  She
ran to the room
to fetch the baby and try to abba her on her back.
She said she was fed a poison as well as the child.  She did not
say how they were poisoned.  They took the child alone with
them.”
(15) The blinds and curtains at the front of the
house were closed.  The bathroom window was open.  These
blinds and curtains
would normally be opened by the accused.
(16) Nothing was missing from the house and it was
not ransacked.
(17) A bandaged was found next to the accused on
the floor as well as a whitish powder next to the cupboard.
(18) That bandage was usually kept in the top
drawer of the cupboard in photograph 27 of EXHIBIT C.
(19) The police and thereafter the paramedics
arrived on the scene.
(20) The accused was in an emotional state but
could talk and she was complaining of stomach cramps.
(21) The paramedics then examined the accused, but
stated that they could not take her along as she had defecated on
herself and
requested that she be bathed.
(22) The aunt Miriam then went into the storeroom,
immediately adjacent to the bedroom of the accused to go and fetch
the basin.
(23) This storeroom is marked A1 and the bedroom
of the accused is marked B on the sketch plan in EXHIBIT C.  On
photograph
17 and 18 of EXHIBIT C, the door of the bedroom of the
accused is on the left.  The orange door to the right leads to
the
storeroom.  There are clearly immediately adjacent.
(23) The door to the storeroom was closed but not
locked.
(24) The deceased was found on the floor lying on
his back on a blanket.
`
(25) She picked up the baby, ran outside of the room and put the baby
on a stretcher.
(26) There was a bandage over the mouth to the
back of the head of the baby, the deceased.
(27) The paramedics informed her that the deceased
had died.
(28) She also found the cell phone of the accused
under her bed.  It was slightly covered with bedding.
(29) In respect of photograph 1 and 2 of EXHIBIT
C, accused bedroom is the one to the left.  If you scream from
there, someone
should be able to hear you.
(30) The two bandages that is now the one around
the mouth of the deceased as well as the one found next to the
accused and in respect
of some evidence around the neck of the
accused were usually kept in a drawer in the bedroom of the accused.
After the incident,
the bandages were found not to be there.  In
all the time, the accused had worked there for the mother of the
deceased, she
had had an excellent relationship with them and there
were no problems whatsoever.
(31) It is common cause that the deceased died of
a fractured neck with asphyxia.
(32) The most probable mechanism that caused the
death is external pressure applied on the neck as well as asphyxia.
The external
pressure would have to be applied to the mouth and the
neck area probably more in favour of the neck.
(33) There were no bruises on the muscles of the
neck, but for a child of that age, not much force is required and it
can happen
that there is no external appearance thereof on the skin
or the muscles.
(34) There were no symptoms of poisoning found
during the post-mortem as there was no granules found in the stomach
contents or
any indication of gastritis which means a burning of the
stomach wall.
(35) As to the asphyxia which means a cut-off of
blood supply to the body, the pathologist found superficial petechial
bleedings
in the heart and the lungs consistent with the finding of
asphyxia.
(36) As to the hyoid bone been found intact during
the post-mortem, that confirms that not a lot of force was applied to
the neck.
(37) The white milky substance found in the
stomach of the deceased, would have been there for between four to
six hours.
(38) Death would have ensued very quickly with a
fracture of a neck.  In respect of asphyxia, up to three
minutes.  If
it is a combination of the fracture and the neck
and asphyxia, death would ensue in a period of less than three
minutes.
(39)The deceased was admitted to the Far East Rand
Hospital on 21 October 2019.The hospital records were handed in by
consent as
Exhibit F.
(40) Dr Spencer Brian Probert saw the accused on
her discharge on Monday the 21
st
October 2019.  The accused had very superficial soft tissue
injuries referring to injuries on the inside of both arms.
See
EXHIBIT F in this regard.
(41) These wounds were indicative of being
self-inflicted due to the pattern and depth thereof.
(42) The needle visible in photograph 6, 7 and 8
of EXHIBIT D, could have caused the injuries to the arms.
(43) No abnormalities in the blood test of the
accused were detected and there is no indication of any substances
being found.
The liver functions were normal.
(44) These blood tests did not indicate any
substance ingestion which would have caused a loss of consciousness.
(45) The neighbour, Siyabonga Sekumbune grew up
with the mother of the deceased, Lerato and she knew him all her
life.  He
was referred to as a family friend.
(46) This Siyabonga would at times do odd jobs for
the mother of the deceased, such as washing her car and then be paid
therefore.
No amount was fixed.
(47) Timothy Kgope and Banele Mongai were friends
of Siyabonga.  On 18
th
October, they met up with him at his house at about 07:30 to 08:00.
They were in his company for the next five to six hours.
During
that time, they never went to the house of the deceased.
Thereafter Siyabonga was fetched by Phillip Mahlangu at about
11:30
to go act as his caddy while he was playing golf in Springs.
Lerato, the mother of the deceased called him there at
17:00 on his
cell phone to come to her house.
(49). Both Timothy Kgope, Banele Mongai and Berry
Mahlangu does not know where Siyabonga was between 05:00 and 06:00 of
18 October
2019.
(50) On 19 October 2019, that is a Saturday, one
Susan Vilakazi, an aunt of the deceased found a needle stuck in a
mattress of the
accused bed.  See in this regard EXHIBIT D,
photograph 4, 6 and 8.  This needle was stuck into the mattress
and it was
under a blanket.
(51).  Mpunisi Patience Chauke, a court
interpreter at Benoni, drew up a translation of EXHIBIT H.  That
is a screen shot
of the Whatsapps sent by the accused.  Her
translation was handed up as EXHIBIT H2.
(52).  Dr Sunday Joseph Algabodian examined
the accused on 18 October 2019 at the Far East Rand Hospital and
compiled a medical
report, a J88 marked EXHIBIT K.
(53)  Simon Mukushe Mkukwana. He confirmed a
section 212
affidavit, EXHIBIT L, which was
inter
alia
about the relevant Whatsapp
messages in EXHIBIT H.  The reference to the time as 04:29:40 am
UTC means universal coordinated
time. In respect of South African
time you have to add on to that, two hours.  In other words, in
respect of the two whatsapps
that would have then been made at 06:29
and in respect of a later one which was marked at 04:30:52 would then
be at 06:30:52.
(54)  Lastly Febele Winnie Molefe, the aunt
of Siyabonga who lives on the same premises said she saw him at 07:00
on the morning
of 18 October 2019 when he went to the toilet, which
was right next to the room where she and her husband were staying.
She
could hear his door which was made of corrugated iron when he
opened it as it makes a scratching sound.  She was asleep
between
05:00 and 06:00 the morning and heard nothing.  She
stated that Siya’s friends came there at 07:30.  That
deals
with the common cause evidence or the evidence which was not
disputed.
From what has been stated above, it is abundantly
clear that the state and the defence case are largely common cause
and the dispute
is really on a very narrow basis.
I now proceed to deal with the evidence of the
state and defence witnesses outside the above parameters.  I
only do so when
I find it necessary for a further exposition and
evaluation of the evidence of the witness outside the common cause
narrative.
I firstly deal with the evidence of Miriam
Nomathemba Mnguni.  That is the aunt of the deceased.
Except for the common
cause facts alluded to above, she was also
confronted with a statement EXHIBIT E in some respects.  It was
put to her that
she did not refer to the fact in her statement that
she did not say there that she found the accused praying.  She
however
maintained that she did find her praying and she did say so
although it is not contained in the statement.
It was put that she did not state in the statement
that the accused said she will not see her family and the child
again.
She however maintained that she did say so.
It was put that she never said in her statement
that she picked up the child from the floor upon finding him.
She however
maintained that she did pick up the child and said so.
She maintained that no one said that accused did something to the
child and that she does not know for a fact that accused killed the
child.
She denied that accused told her that Siyabonga
and his two friends had knives.  She also never told her she was
grabbed and
put to the ground.  She also denied that accused
told her that she had lost consciousness.  She also denied that
accused
told her she saw “three guys”, snatching the
child from the bed.  She maintained that accused had said she
ran
to fetch the baby.  She wanted to
abba
the child on her back and she and the
child were then fed the poison.
It was put to her that accused does not know what
the three men did to the child.  She however maintained that
accused said
they fed her and the child poison.
I will then deal with the evidence of the mother
of the child, Lerato Mnguni, further to the common cause facts
referred to above.
She testified further that the blinds in the
kitchen were closed and that usually they were opened by the
accused.  She also
testified that she found the accused praying
in her room.  She stated that accused stated that upon her
opening the door,
they…  that is now the attackers,
pushed her.  She tried to strap the child onto her back but they
forced her
and the child to drink the poison and they then locked her
in the house.
I should pause here to state that very strangely,
I should state that the accused said that they threw the keys inside
the house,
once they had closed the door and locked the security door
and then left.
It was put to her that the aunt never mentioned
such as she did that the accused had a bandage around the neck.
She was however
adamant that it was around the neck and that the aunt
must have forgotten about it.  Her statement dated 23 October
2019 was
put to her and was formerly proven.   EXHIBIT J
was handed in.  It was put that there was no reference in
paragraph
5 of her statement that the child was poisoned.  She
conceded that, but stated that although she was upset, accused told
her
about the child being poisoned.  To her credit, she did use
the word “drugged” in paragraph 5 of EXHIBIT J, I should

remark her that the word “drugged” was spelt D R U G E
D.  I will return to this later.
She also denied that accused stated that Siyabonga
and two others charged at them with knives.  She also
specifically denied
that the three grabbed her and threw her on the
ground.  She denied that the accused ever used the word
“throw”.
It was put that she was forced to drink a
liquid concoction to which she answered that she, the accused used
the word poison.
She also denied that accused said they took
the child from the bed.  Upon it then put that accused would
deny killing the
child, she stated that was just her assumption.
It was put that accused thought she would die.
The witness however replied that she could have asked assistance from
the window
in her room facing  the street plus how could she
then manage to send all those whatsapps.  She lastly stated upon
a
question of the court that accused never gave any explanation about
the upper part of her body being naked.
The next witness which on the face of it is a
crucial piece of the puzzle is that of Tshwarelo Petunia Ntuli.
She stated that
on 18 October 2019, at 14:30 in the afternoon, she
was on her way to one Lerato’s house (this is now another
Lerato), not
the mother of the deceased, when she passed the house of
the deceased.  She saw the accused standing at the small gate
visible
in photograph 1 of EXHIBIT C.
She described her, that is the accused as “the
caregiver”.  She described her as being orderly and not
disturbed
and dressed in a short-sleeved T-shirt.  She was a
lone and uninjured.  When she returned from Lerato’s house
being
unsuccessful in her quest to go and see somebody there, five
minutes later, accused was busy returning i.e. walking to the house.
Later that same evening, she heard of the deceased
passing.  Under cross-examination she stated that she was one
and a half
metres from the accused when she saw her, the accused for
the first time.  She saw her from across the street which was
about
three metres away.  She stated that she had seen the
accused six to seven times before.
On one occasion the accused was walking with her
aunt to the mall and at other times she would see her in the yard.
On this
day, she did not speak to the accused.  As she came
closer, the accused turned her head sideways and that she did not
greet
her.  She made a statement three weeks later after she was
called by Lerato.  They did not tell her anything and she denied

she is making a mistake as to the identity of the accused and that
she is not truthful.  She importantly stated that the accused

did not appear “weak” to her.
I then need to summarise the evidence of Siyabonga
Milton Sekumbune.  According to his evidence, he was asleep in
the main
house.  That is where he was a neighbour to the house
where the accused was employed.  He woke up at 07:00.  He
went out to the toilet and saw his uncle’s wife.
That is now Winnie Molefe.  She requested him to perform
some
task as to cold drinks.
He told the court that his door is a corrugated
zinc door which makes a scratching sound if you open it.  He
then went back
into the house to prepare a case for the cold drinks.
He heard someone whistling and then someone knocked at his window.

It was Timothy and Banele.  It was then about 07:20.
It is not in dispute that he then spent the next
five to six hours in their presence.  Later,he acted as a caddy
for Mr Barry
Mahlangu at a golf course in Springs when Lerato Mnguni,
that is the mother of the deceased, called him there at 17:00.
He
went to her house at about 19:00.
He denies ever going to Lerato’s house
earlier that day.  Under cross-examination, he stated that he
had a very good
relationship with Lerato.  He washed her car on
occasions.  Probably two times per week.  Although she owed
him
money on the 18
th
October 2019, she would pay him “like thanksgiving.”
It is out of gratitude.  He stated that if she paid
him R20 he
would be happy with that.  Normally however she would pay not
more than R200 per month.
He emphatically denied the version of accused that
he and two “friends” were at accused place of work.
He denied
she heard his voice and stated that he was not there.
He disputed that he and his friends charged at her, that is the
accused,
with knives, followed her to the bedroom, threw her on the
ground, forced her to drink a concoction and that he and his friends

then took the child.
He stated that he has never had a problem with the
accused and did not know why she would accuse him.  He disputed
Timothy’s
evidence that he was asleep when the latter knocked
his window.  He said he was awake.  He specifically
disputed the
assertion that he and his friends went to the place of
the deceased to rob, because he was not happy with his payment.
He
also denied that he and his friends attacked the child as “a
way of revenge”.
I must pause here to already state that I find
this an amazing and startling assertion.  Attacking a child to
get revenge on
someone else.  He did not dispute the assertion
of the accused that she loved the deceased, plus that she had no
reason to
attack the child and stated that the family of the deceased
treated accused well.
On questions of the court, he again repeated that
he was still asleep after 05:00 of 18 October 2019.  He usually
only gets
up at 07:00.  He also stated that there was no formal
arrangement as to him being paid by Lerato.
The evidence of Dr Spencer Brian Probert then
requires some further elucidation except to the common cause facts
already referred
to above.  During 2019, he did his internship
at the Far East Rand Hospital after he had obtained his medical
degree.
His MBChB in 2018 following a BSc which he had obtained
in 2014 at the University of the Witwatersrand.
As stated during 2019, he did his internship at
the Far East Rand Hospital.  He started there in January 2019.
By 18
October 2019, he had treated a high number of assaults cases.
Poisoning was not so common but substance abuse is.
He
saw the accused on a discharge on 21 October 2019.  His evidence
is to the effect that the injuries on the inside arms
are very
superficial and consistent with something else than a knife attack.
The needle visible in EXHIBIT D, photograph
6, 7 and 8, he finds that
it is possible that that could have caused the scratches.
He noted that the depth and the pattern of the
scratch wounds were more indicative of being self-inflicted.  He
found that
the accused was malingering as to her alleged stomach
ache.  There was no tenderness on examination.  Her vital
signs
were normal, so there was no indication of any stomach pain.
He also stated that there was no loss of consciousness noted.

Her liver and kidney functions were normal, so there was no
indication of the impact of any poisonous substances.
Under cross-examination, he agreed that he did not
have much experience, but that he had in this case discussed his
findings with
his seniors.  It was put to him that the accused
does not know how the scratches were inflicted, but they were not
self-inflicted.
He stated that due to the pattern of her
scratches, it was suggestive thereof that it was self inflicted.
Upon being
put that she was forced to drink an unknown substances, he answered
that that her blood tests did not indicate same.
As to the evidence of Dr Fortunato Beccia, the
pathologist.  His evidence was not disputed at all.  I then
turn to the
evidence of Dr Sunday Joseph Algabodian.  He
testified as to an examination of the accused upon her admission.
He also
completed a J88 which is marked EXHIBIT K.  I need to
refer to his evidence in some detail.
He stated that he received his first degree in
Nigeria.  That is in 2002 and that was a Bachelor of Medicine
degree.
In 2007, he received a post graduate diploma in
ophthalmology and he received his third degree here in South Africa
which was a
diploma in general practice.  In 2014 /. 2015, he
obtained a diploma in occupational health and safety in Cape Town.

His fifth medical degree, was a Master of Science in medicine,
majoring in emergency medicine from the Wits University which he

completed in the year 2019.  As to the diploma, he received in
general practice, that was from the Foundation for Development
in
Pretoria and the diploma in Occupational Health and Safety was with
the Oxbridge Academy in Cape Town.
He stated that he has an effective 18 years of
medical practice.  In October 2019 he was a full-time employee
of the Department
of Health and he was assigned to work in the Far
East Rand Hospital and a senior emergency medical officer.  A
J88 report
was shown to him marked EXHIBIT K.  He indicated that
he had completed this report on the 19
th
October 2019 after seeing…  After examining the accused
on the 18
th
October 2019.
The examination was on the 18
th
at 19:30 in the evening.  He stated that in the course of his
work, in the emergency unit, saw one Tsabana Mannana Selina.

That is the accused before court.  This examination was done in
the presence of other junior medical doctors.  The patient
came
in with a history of being injured and forced to drink and he queried
that as a poison.
He stated that the accused was quite conscious and
alert and orientated in time, place and person.  When he
examined her, clinically,
she was stable.  Her vital signs were
stable and she showed multiple superficial injuries on both her upper
limbs, on the
outer surface anteriorly.  On question of the
court, he indicated that that referred to the inside of the arms in
the area
of the elbow.
He stated that the pattern of this injury and the
irregularity and the depth of the injury arose suspicion in his part
because if
it was inflicted by a third party, most of the injury
would have been on the outer parts of the arm and not so regular as
it was
found to be in this case.
He stated that she came in and pretended to be
having some severe pain, excruciating pain on the upper part of her
abdomen and he
indicated that she sort of held her arm over her
abdomen and was crouched over.  She was then examined and he
found nothing
to correlate with the degree of pain she complained of.
He testified that he saw the powder which she
claims to have drunk and that was seen on her left shoulder.
Mostly importantly
not in her mouth   He described that
this white powder was dried, powdery and soft.  A whitish
powder.
He stated that when he ties the history of no
abdominal pain and saying that she drank something, to him there was
no evidence that
there was anything in that which went through her or
so as far as to her stomach that could cause some form of poison, so
he made
the final diagnoses which he noted in the J88 and where he
stated “multiple superficial injury with a question mark.

Query, attempted self-suicide”.  So, which implies that
those injuries were self-inflicted and they were very superficial

which can be caused by a very small object such as a pin.
In summary he stated, that he wish to say that
this is a case of a patient who came alleging that she was assaulted
with self-inflicted
wounds on herself with no clinical evidence
suggestive of being assaulted by a third party or be forced to drink
anything that
resembles the poison.
He stated that as to the superficial wounds on the
arms, he meant that it was not bleeding profusely and it was like
scrape wounds.
He stated that it made him suspicious that these
wounds were on the inside of the arms and not the outside.
Asked about her
level of consciousness.  He stated from
admission to the time she was taken to the ward, her level of
consciousness was alert
conscious and alert over 50 by way of a
medical grading.  He stated that on the last page of EXHIBIT K,
he made some notes
on the sketch and he stated that he refers to the
marks on the arms.
He was referred to the fact that there is also a
note in respect of the stomach and he stated yes, that is correct, he
noted a tender,
that place is called supra pubic.  That was the
tenderness he had referred to.  That is mild tenderness.
He was
put to him by the state that another doctor who had discharged
her had testified that there was nothing in the blood results of
the
blood test.  That was with reference to Dr Probert.
He stated that yes, it is so, that before they
would refer the accused to a medical team, they would run some basic
tests to check
if there were any problems with the liver or the
kidneys.  He stated that these blood tests and the outcome
thereof confirmed
his clinical examination that there was no poison
that she had ingested or that somebody had forced her to ingest.
He was then cross-examined by Mr Maimela at
length.  He confirmed that he was the one who had examined the
accused upon her
admission to casualty.  He was asked what did
she say was the problem.  He stated that she told him that she
was forced
to drink? some poison and that somebody also inflicted an
injury on her hands.
He also confirmed that upon his examination of the
accused, he discovered minor wounds on her limbs.  He was then
asked about
the wound on the chest and he stated that there was no
wound on her chest.  The only thing is that she was holding her
chest
that she is having a severe pain that she suffering from a
severe pain on her upper abdomen.
He stated that he had marked it in the last page
of the J88 as tender and he stated again supra pubic that that area
is called supra
pubic region in medical terms and when he said
tender, he meant that when he touched her, you know when a person
winces, that he
is feeling pain.  He stated “okay, you
appear to be tender”, but when he matched it up with her
clinical picture,
it did not correlate.
He stated that the mark he had fixed on the chest
was not a physical wound.  He just referred to that upper part
of her stomach.
He also stated that the poison that is most
common in this environment does not cause abdominal pain.  He
stated that most
of these poisons are organo phosphates or blue
deaths.  The do not cause abdominal pain.  Rather what they
cause is continuous
profuse vomiting and diarrhoea and they would be
salivating.  They would be unable to breathe.
He also stated that their vital signs would not be
very stable.  The blood pressure, the pulse, the pulse rates and
the respiratory
would not be as stable as when they would normally
examine someone.  Advocate Maimela then questioned him about so
called
excessive vomiting that is self-induced.  He stated that
yes, that could cause upper pain, but he also stated that excessive

vomiting is a consciously induced.
It depends on the course.  Vomiting can
induce pain on the upper part of the abdomen, but that vomit must
accompany blood,
because there is a tear between the junction of the
stomach and the oesophagus and that is where the pain comes from and
on the
question of the court he stated that he found no blood.
He stated that well there was no vomit and there was no blood.
As to, he was then questioned by Mr Maimela at
length about the vomiting.  He stated that classically when we
see a patient
in the case that when they vomit, you see that the
vomit flow from their lower abdomen down onto the body.  That is
the front
part of the body, but he stated in this case when accused
came in there was a powdery substance on her left shoulder as he had
indicated on the J88 when he state witness her.  He stated that
that bothered him as to where he found it.
He stated that it bothered, because if you say
somebody forces you to drink poison and thereafter you try to vomit,
you will not
consciously choose on your left shoulder.  He
stated that when they see a case of suspected para-suicide or that
somebody
attempted himself or herself self-harm or self inflicted
injuries, they would normally admit such persons to be observed for

over 12 to 24 hours.
It was put to him by Mr Maimela that whether he
agrees that if the injuries that he found or which he saw on her
limbs whether it
is possible that they were inflicted while she is un
conscious referring or whether she is unconscious, referring to the
wounds
on her arms.  He stated that in his clinical examination,
that there was no evidence that the accused, this patient had lost

any consciousness.
He stated that right from the time she was
attacked, she was conscious and alert to the time of the presentation
when he saw her.
He stated that when she came she was conscious
and alert, orientated in time, place and person and was able to
communicate with
him and if the patient had suffered some form of
unconsciousness that there would be some indication of a loss of
memory, which
he did not find in this case.
It was then put to him that the accused would say
that she was forced to drink poison just after 05:00 early in the
morning and
then Dr Algabodian only saw her around 19:00 when she had
regained consciousness.  He stated that when a patient drinks
poison,
a type that renders them unconsciousness, it would start
acting between 50 and 30 minutes and that if the so called patient
induced
unconsciousness in this patient, referring to the accused,
there is no ways that she would have regain consciousness before
coming
to the hospital.
He once again confirmed that he did not find any
indications that she had lost consciousness.  He was
specifically asked that
whether in his 18 years of practice he has
ever treated a patient who has consumed blue death and he stated that
he had seen them
every day.  He was asked how long does it take
for a person who has consumed blue death to regain consciousness, to
which
he answered for that, before a person has consumed blue death
to go into unconsciousness, it would take a minimum of 30 minutes.
And he further stated that if such a patient
lapses into unconsciousness, there is no way that the patient would
regain consciousness
without using an antidote and being stabilised
or else the patient would have died.  He stated that in respect
of this particular
patient, referring to the accused, that there was
no evidence that she had vomited.
It was put to him that if a person had lost
consciousness 10 hours before he was examined, that he would not be
able to pick that
up that he had lost consciousness.  To that he
answered that now we are talking of chemical poisoning and if
chemical poison
induces a loss of consciousness, the patient will
pass out or die.
He stated that clinically she would have died
because the degree of poison that would case unconsciousness is
targeting five major
organs in the body that are responsible to keep
life stable.  He confirmed that she would have been dead if she
had lost consciousness
due to chemical poison.
It was then put to him by Mr Maimela that the
reason why the accused person did not die from the poison is because
she vomit it
out.  To which he replied that that means, she
never lost consciousness and that if she is telling the court that
she lost
consciousness, then she is telling a lie.  It was then
put that the accused would come and testify that she was forced to
drink a concoction that she felt weak and she also felt drowsiness
and this was put to Dr Algabodian.  He gave the following
answer
and I quote just to show the spontaneity thereof.  His answer
was referring to Mr Maimela “My brother, even if
anybody could
drink a cup of blue death now, in the next 10 to 15 minutes, the
person will still be talking.  He will not
feel dizzy or
unconscious immediately.
He then went further and stated that the patient
will still be active going around, because first of all, this poison
goes and stays
in the stomach.  Mr Maimela then put it to him,
that she will further give evidence that she does not know what was
mixed
in the concoction.  It could have been blue death, mixed
with methylated spirits or anything else poisonous.  He stated

that clinically, when he examined this patient, there was no evidence
of any chemical poison ingestion.
He was asked how he came to the conclusion that
she had not consumed any poisonous substance, he stated well they
took blood samples
in this regard.  Clinically, she did not…
There was no indication that she had been poisoned and the blood
samples
also did not…  The blood samples or a chemical
investigation did not indicate any poison.  The liver was
stable.
The kidney was stable and there was no trace.  If
they assess something such as blue death, that would have been
visible in
the blood samples, but the blood samples did not show it.
He confirmed that when it was put to him, the
earlier evidence of Dr Probert when asked in re-examination by Ms
Scheepers that the
blood tests were performed and no abnormalities
were found in the blood tests, Mr Maimela then asked the question
that the accused
will…  No sorry, this previous reference
to Ms Scheepers was as to something which Mr Maimela had put.
It was
not re-examination .
Mr Maimela lastly put that the accused person
would come and give evidence that she does not know how she sustained
the injuries
that he saw on her limbs, to which Dr Algabodian
testified that in the course of his medical training and experience,
he had attended
a course in forensic medicine, injuries and both
injuries and assault representation.  He stated that
self-inflicted injuries
are mostly found on the outer surface of the
body that is facing the patient.  In other words where the
injury intruded by
a third party as in when somebody is assaulting
you, that is what they call the body as an unconscious defence
mechanism, that
makes you to even put your forearms out and this
injury will not form regular patterns, so he can confidently state
that the injury
he found on this patient which he examined, was
self-inflicted because (1) it is regular and (2) it is superficial.
That
concluded his cross-examination.
On the question of the court, he was referred to
EXHIBIT C, photograph 27 that indicated the position where the
accused was found
and on it was visible a white substance.  He
commented that the only thing he could say that it was similar to the
substance
he had found on her shoulder.  More on that, he could
not say.  That concluded the evidence of Dr Algabodian
I see it is now 11:45.  The court will
adjourn for 15 minutes.
MS
SCHEEPERS
:   As it pleases
the court.
MR
MAIMELA
:   As it pleases the
court.
COURT
ADJOURNS
:
[10:37]
COURT
RESUMES
[10:53]
COURT
:
Accused may be seated.
I then proceed with my judgment.  Before the
adjournment dealt with the evidence of Dr Algabodian.  The next
witness I
need to deal with is Mpumisi Patience Tchuma.  She is
a court interpreter here at Benoni Magistrate's Court.  She has

been an interpreter for five years.  She has attended a four
week’s court at the Justice college.  She interprets
from
various languages including Southern Sotho, the language the accused
speaks, hailing from Lesotho.  She provided a translation
of the
screen shots visible in EXHIBIT H.  The translation was marked
EXHIBIT H2.
Under cross-examination, she stated that she grew
up in Kagiso and although her mother tongue is Shangaan, 90% of the
people there
speak Sesotho.  As to the Whatsapp of 06:42,
EXHIBIT H, her interpretation in respect of the Whatsapp, she did not
agree with
the translation that the translation does mean the person
close to my heart and not the wound in my heart.  She was
adamant
in respect of the latter.
As to the Whatsapp of 06:52, in ‘H2’
she conceded that the interpretation “Paseka is not going to
pick my dead
body/corpse” but rather “pick up my
remains”.  Any other state witnesses not dealt with in a
further summary
will become evident when I deal with their
evaluation.  That concluded the evidence of the state.
Mr Maimela then called the accused to the stand.
She started testifying on Wednesday the 4
th
November 2020.  She testified that she is a Lesotho citizen who
came to South Africa in 2014.  She had been working for
the
mother of the deceased Lerato for almost two years.  They had a
good relationship and she described her as almost a sibling.
On
the night of 17 October 2019, the deceased slept with her.  On
the morning of 18
th
October 2019, the aunt, that is Miriam Mnguni, the first state
witness went to work after 05:00.  The mother of the child,

Lerato, was not there.
Once the aunt had left, she was on the bed asleep,
but cold hear what was happening.  After 05:00, she heard a
knock and the
voice of Siyabonga.  She unlocked and opened the
door and the burglar door.  She saw Siyabonga and two other
males who
had knives with them.  Their faces did not appear to
be happy and they looked in a fighting mood.
She ran to the bedroom and they followed her into
the bedroom.  Siyabonga however remained in the kitchen.
The two males
grabbed her and pressed her down.  Siyabonga came
from the kitchen with a jug.  It contained some liquid.  He
gave
it to the other two males to let her drink it.  Siyabonga
took the child from the bed and took the child out of the bedroom.

They held her arms and with their hands pressed open her mouth.
She swallowed.
After that, she felt being stabbed with something
sharp on both arms on the inside.  Thereafter, she felt dizzy
and her tongue
was stuck.  He knees were cramped and she saw
everything in darkness.  She heard the voice of one of the males
who stated
“where is the money”.  She could not
speak.
These two then left her bedroom.  She was
dressed in her pyjamas.  Siyabonga had left with the child,
before she was forced
to drink the liquid.  She could see in the
darkness when the two left the bedroom.  She was left on the
floor.
She could not scream.  She crawled and managed to
get a hold of her cell phone.  She recalled that the phone was
under
her pillow.  She was now shaking.  She Whatsapped her
sister Rosina in Lesotho.  She could not remember the time.

She Whatsapped her sister as she felt that she was dying.  She
could not Whatsapp Lerato, because she saw her friend Siyabonga

taking the child and fleeing with the child.
Her thoughts were that Siyabonga was saving the
child and I emphasise “and he wanted her to be killed.”
She thought
the plan was with Lerato to save the child so that she
could be attacked.  She could not understand that as he,
referring
to Siyabonga was a friend to Lerato.  She could
remember the contents of the Whatsapp.
She told her sister to tell Paseka, that is her
younger brother to come and pick up her corpse, because she felt she
was dying.
When Lerato and her aunt found her, she had excess
stomach cramps.  When she was referred to photograph 27 in
EXHIBIT C, with
the white substance on the floor, she confirmed that
that was her room.
She stated that her upper body was in fact naked
when she was found.  She was weak and felt her body sweating and
burning.
As to the needle, visible in EXHIBIT D, photograph 6,
she does not know how it got there or who put it there, but it is her
bedroom.
Startlingly, that is now Lerato and her aunt, did
not ask her where the child was.  They asked her nothing.
Upon questions
being put to her by Mr Maimela, during
evidence-in-chief, he looked like a dentist extracting teeth at that
stage.  She remembers
telling Lerato three males attacked her
after being asked where the child was.  She surprisingly
answered that she told Susan,
their sibling, when the latter
undressed her later that day that “they” – I
emphasise plural, had taken away
the child.
Immediately thereafter she said, “I was
saying Siyabonga took the child.”  She amazingly did not
speak to Lerato
or the aunt.  She does not remember discussing
anything with Lerato and the aunt.  She only remembers speaking
to the
aforesaid Susan.  A drip was inserted in her arm by the
paramedics and she was taken to hospital and thereafter she was
placed
on a stretcher by the paramedics.
She stated that she loved the child as her own.
Her feelings are disturbed and it haunts her.  In hospital, a
second
drip was inserted and she confirms that blood samples were
taken of her.  One of the doctors told her that the child had
died.
A sister helped her to climb onto the bed.  She was
arrested on the 21
st
October 2019.  That concluded her evidence-in-chief.
She was then cross-examination by Ms Scheepers.
I find it convenient to deal with the cross-examination when I
evaluate the
evidence later.  I now turn to the evaluation of
the evidence.  Firstly Miriam and Lerato Mnguni, I find it
convenient
to deal with them together.  I first deal with the
evidence of the aunt, Miriam Mnguni and the mother Lerato Mnguni.
I found them both to be impressive witnesses who
stuck to their versions under cross-examination.  Their evidence
is logical,
inherently probable and they corroborate each other.
Both were also confronted with their statements in respect of Miriam

with EXHIBIT C and in respect of Lerato with EXHIBIT J,
respectively.
I have considered the so-called contradictions,
but I do not find them to be material to affect their credibility.
Interestingly,
it should be noted that both statements were taken
down by the same officer.  It is Detective Warrant Officer
Patrick Obodu
on different dates.  EXHIBIT E, that is the
statement of Miriam, marked “A2” was taken on 18 October
2019 at 22:55.
That is the same day as the incident and the
statement of Lerato EXHIBIT J, A19 in the docket was taken on 23
October 2019 at 13:00.
That is four days later, which is of
course in their favour.  The slight difference point to an
absence of collusion.
By way of example, it was put to Miriam that she
did not refer to the accused praying in her statement, yet she
maintained that
she did.  That is off-set by Lerato who
corroborated Miriam in her evidence that she heard the accused
praying and also stated
so in her statement.  The accused said
“God what is it that I have done?”  And she states
so in paragraph
4 of EXHIBIT J.  Both denied that the accused
ever told them that attackers had knives.  Both similarly denied
that the
accused said she was grabbed and thrown to the ground.
Both are also adamant that although they did not refer to the word

poison, Miriam used the word  unknown liquid in EXHIBIT E in
paragraph 5, while Lerato used the word in paragraph 5, in EXHIBIT
J,
drugged, but drugged spelled D R U G E D.
They were adamant that accused said that she and
the deceased were fed poison.  If I consider the statements,
they are not
of the best quality.  Replete with bad grammar and
atrocious spelling, the court should be very careful to overly
emphasise
the value of the statements, especially of such a traumatic
event.
Such statements are also not taken down by way of
cross-examination.  See in this regard,
State
v Mafaladiso
2003 (1) SACR 583
, a
judgment of the Supreme Court of Appeal at 593e – 594h.
See also
State v Bruiners
1990 (2) SACR South Eastern High Court Local Division 537e.
Similarly, the apparent contradictions as to the one bandage,
Miriam
did not refer to it, but Lerato stated it was in fact found around
the neck of the accused.
It is however clear on photograph 27 of EXHIBIT C
that the bandage was found on the floor next to where the accused
was.  So,
the bandage was there.  The contradiction is more
apparent than real.  I accept the evidence without any
hesitation.
The next witness I need to deal with is Tshwarelo
Petunia Ntuli.  I watched this witness carefully and I was
impressed with
her demeanour and the quality of her evidence.
It is so that she is a single witness.  As to identification and
I must
treat her evidence with caution.  Her identification was
made in broad daylight and in ideal circumstances.  One and a

half to three metres away in the middle of the day in broad sunlight.
Her identification is also strengthened by the
fact that she knew the accused before.  There appears to be no
motive to lie
as she really has no interest in the matter.  I
find her evidence to be truthful and reliable.  I have no
hesitation
in accepting it.  That places the accused outside the
house at 14:30, fully dressed and apparently in good health.
She, the accused did not at that stage report
anything such as an alleged kidnapping to her.  If her evidence
is true, the
accused was lying about this but I will deal with that
later, when I deal with all the evidence including the accused
I then deal with the evidence of Timothy Kgope and
Banele Mongai.  These are the two friends of Siyabonga who was
with him
from approximately 07:20 / 07:30 to 08:00 on the morning 18
October 2019 and for the next five to six hours.  Both cannot
really say where Siyabonga was between 05:00 and 06:00 and I
therefore do not deem it necessary to discuss the evidence any
further
as it was not attacked.  I accept it.  I should add
that Timothy Kgope is the one who informed Siyabonga about the fact

that Lerato is looking for him.  It is significant to note that
both say that Siyabonga is a person who loves his sleep and
they both
say or one of them said that they actually woke him up.
I also find it instructive and strange that it was
never put as one would have expected that they were the two friends
with Siyabonga
as to the attack next door.  The question is who
were these two friends referred to by the accused.  This was not
put
to Siyabonga.  It was only put that he alone was there.
It is clear to this court however that they both thought it could
not
have been Siyabonga as they inferred he was sleeping.  Both
definitely thought so.
The next witness is Susan Vilakazi.  She is
the aunt of Lerato who found the needle stuck in the mattress on the
19
th
October 2019 when she was cleaning the room of the accused.
Although it was put to her in cross-examination that the accused
does
not know how the needle got stuck there and then it was also put that
she had never…  that is now the accused
used the needle
before that.
Suffice it say that I accept her evidence as she
has no reason to lie and the finding of the needle itself is not
attacked by the
defence.  It was just put that the accused knows
nothing about it.  This needle will later prove to be
significant as
to the scratches of the inside arms of the accused.
Febe Winnie Molefe, her evidence as to the fact
that she saw Siyabonga at 07:00 was not disputed at all, except for
the fact that
she could not unequivocally exclude that Siyabonga
could have left earlier if he left the door and he had left quietly.
Her
evidence was not disputed.  She was however adamant that she
did not hear anything, except for the above, which I will deal
with
on the basis of probabilities later.  I accept her evidence.
As to the witness Barry Phillip Mahlangu, the golf
player, his evidence is not disputed and I accept it.  Simon
Mapuse Nkwana,
his evidence is of an expert nature, as reflected in
EXHIBIT L, by way of a
section 212
affidavit.  His evidence is
that the first Whatsapp which was sent at 04:30 that that should be
at 06:30 referring to the
difference in time and international time
and South African time.
This evidence was not disputed and the evidence is
accepted.  See in this regard on page 33, the last entry where
the address
12466 Malete Street, Daveyton is provided.  It is
common cause that is the house where the incident occurred.  See
also
in this regard the entry at page 34 of EXHIBIT L, the top entry
starting with the words “Keng Hoo.”
I then turn to deal with evidence of Siyabonga
Milton Sekumbune.  He is the neighbour who was implicated…
Who
was allegedly implicated in the attack on the accused on 18
October 2019 and that she saw him after 05:00.  This witness
made
an excellent impression on me in the witness box.  He was
logically and forthright in his answers and stuck to his version

under cross-examination.  His evidence is also inherently
probable.
The question is, why would he attack the hands
that feeds him and be recognised in the process with disastrous
consequences.
Furthermore, it is not clear what the purpose of
his attack on accused would be.  If it was because he was not
happy with
is payment, it does not make sense as there is firstly no
such evidence and it was not put to Lerato that he was unhappy with
the
payment.  Secondly, nothing was stolen or taken from the
house, so it was an unsuccessful robbery or theft of what.  That

is not even clear.  Thirdly, on all the evidence, he got on
well, not only with Lerato the mother of the deceased, but there
is
also evidence that he looked after the baby on occasion.
He was a family friend and there has been no bad
blood.  Fourthly his initial answer that he does not remember
that Lerato
owed him money is instructive as it shows that the money
was not important to him at all as it was a mere gratification.
He stated, if you paid him only R20, he would be happy.
Fifthly, Lerato testified and this was not
disputed that when she related the accused version about him being
the attacker, he looked
surprised.  Sixthly, the  motive
suggested about the money for a car wash seemed so insignificant an
unconvincing and
highly improbable.  Eighthly on the
probabilities he was probably asleep as his friends seem to believe
so.  They alleged
he loved his sleep.  According to him, he
usually only gets up at 07:00.  His aunt Winnie Molefe testified
that she would
normally hear the door open.  She only heard it
on that day for the first time at 07:00.  She also saw him at
07:00.
If it happened at 05:00, she heard nothing.  No
doubt, the probabilities favour the version of the Siyabonga that he
was in
fact at home of the morning of 18 October 2019 at 05:00 and
that he was asleep.
Nine, the assertion that the child was attacked by
him for revenge is a startling and improbable assertion.  Ten,
suffice it
to say at this stage that the later evidence of the
accused about Siyabonga’s role in the attack kept on changing
and that
must lead to a negative credibility finding, bearing in mind
as an important factor in a holistic approach to the accused, to all

the circumstantial evidence.
Eleven, even more damning for the accused is that
in her Whatsapp to assist her soon after the attack, she does not
mention Siyabonga’s
name at all.  To this court, that is
the
coup de grace
.
At the end of the day, I am satisfied that the evidence of Siyabonga
has the ring of truth is inherently probable and that
he has no
reason to lie or that no motive has been shown to attack the
deceased.  As I will indicate later, he was just a
convenient
scape goat.  I accept his evidence.
I then deal with the evidence of Dr Spencer Brian
Probert.  As to the evidence of Dr Probert, I should state that
although
he was still inexperienced as a doctor, he impressed me as a
witness.  He clearly already has extensive experience of assault

cases and cases relating to substances.  He provided reasons for
all his opinions and he qualifies as an expert and his evidence
was
not really attacked.  I accept his evidence as Dr Algabodian
would also later corroborate it.
As to the evidence of Dr Fortunato Beccia, the
pathologist as I stated earlier, his evidence is undisputed and I
accept it.
I then deal with the evidence of Dr Sunday Joseph
Algabodian.  Algabodian saw the patient on admission on 18
October 2019 and
noted his findings in the J88, EXHIBIT K.  I
found him to be an excellent witness.  Well qualified and with
18 years
of experience.  A true expert witness.  Of that
there can be no doubt.  I have no hesitation in accepting his
findings.
If one has regard to his evidence, it is clear that
accused was malingering upon admission and clinically and chemically
did not
present the picture of being poisoned.
He stated that there was no clinical signs of
losing consciousness and the wounds on the inside of her arms are
self-inflicted and
not due to an assault.  He corroborates Dr
Probert as well.  The result of the above expert evidence is of
course objectively
speaking…  I repeat that.  The
result of the above expert evidence is, of course objectively
speaking, fatal to
the version of the accused, which will be
indicated later as she clearly then lied when she averred that she
was injured and poisoned,
but I will deal with that later.
Mpusmisi Patience Tchuma.  I was impressed
with this witness and I accept her interpretation as the Whatsapp in
EXHIBIT H sent
at 06:42 as there is nothing to controvert it.
What Mr Maimela put is not evidence and accused never testified about
that.
As to the interpretation of the 06:52 translation of the
dead body or corpse to with the word ‘remains’ is neither
here nor there as she in any event conceded the other translation
proffered to her.  Interestingly accused in her evidence
used
these exact words.
I now turn to deal with the evidence of accused in
some detail.  Firstly, I should make an observation that I
watched the accused
carefully throughout the trial.  The trial
had started the Monday 26 October 2020.  By Wednesday the next
week, 4 November
2020, the accused started testifying.  During
the first week of the trial, the accused sat quietly, confident in
the accused
dock.  The next week Wednesday, the moment she
climbed into the witness box, her demeanour and posture changed.
Suddenly
she started swaying from side to side.  When that was
raised by the court, she stated that she was “not in a good
state”.
When asked again about the swaying, she answered
almost irrelevantly, “my memory goes back.”
The court
then adjourned briefly.
When we came back, the first question of the
prosecutor was “are you okay?”  To which she
replied, “yes.”
Her cross examination
continued for some time on 4 November 2020 until after the tea
adjournment which was from 11:30 to 11:45.
Soon thereafter, the
accused continued swaying in the meantime.  She suddenly asked
the court to stand down for two
days as she was not “feeling
okay.”  She complained of strains at the back of her neck.
The court stood down until the next day, that is
the Thursday the 5
th
November, after ordering that she be seen by a doctor.
According to the doctor’s report EXHIBIT M, compiled by Dr
Pasha, she was clinically stable and healthy.  As the report was
not clear, the court ordered that Dr Pasha be subpoenaed for
the next
day.  That is 6
th
November 2020.  In the meantime, she did not continue with the
cross-examination.
Dr Pasha then testified that there was no medical
problem, but as he was not sure what the court required, he noted
that if the
court wants a psychological and psychiatric report, the
accused needed to be sent to Themba Memorial hospital for such.
The
remark was therefore conditional.  As he had completed a
basic course in psychiatric evaluation, he found no psychological

problems in the accused.
Under cross-examination, he stated with a
reference to EXHIBIT M on the second page that the capital A circled
meant assessment
and the capital P circled meant plan.  He said
accused…  He was asked whether the accused complained of
neck pain.
He stated that she told the doctor that she had
pains on the side of her neck.  When he queried her, she said
she was in court
and she was tired.
He was adamant that the accused did not need any
further evaluation.  The court hen ordered the trial to
proceed.  When
cross-examination resumed on that day, that is
now the 6
th
November at 09:55, the swaying mirabile stopped.  That was just
an early indication of her manipulative nature which was to
come.
She was clearly malingering.  Drawing sympathy from the court.
Be that as it may, cross-examination was
completed on that day.
That is Friday the 6
th
November 2020.
As stated, having watched the accused carefully
during the trial, her performance in the witness box can only be
described as pathetic.
She was a spectacular bad witness.
Her evidence was vague and she tended to give long rambling and
irrelevant answers.
She can rightly be described as a
disinterested witness especially when confronted with incriminating
evidence.
She was also most evasive at time and questions
often had to be repeated and she had then to be instructed by the
court to answer
those questions.  She was also a contradictory
witness who contradicted her own evidence as well as her
instructions.
At times her evidence was laughable and absurd
and it was akin to a fairy tale.  Her version was not just only
improbable
but measured against certain objective facts, such as the
medical evidence as to the poisoning and the self inflicted
scratches,
her version was nothing else than a pack of lies.
As stated earlier, the evidence of the accused was
fraught with inconsistencies, vagueness, contradictory, improbable
and in fact
a lying version to such an extent that looking at the
merits and the demerits of all the witnesses that the version just
cannot
reasonably possibly be true by any stretch of the imagination.
Ms Scheepers in her heads of argument in paragraph
4 referred to certain improbabilities and I quote from paragraph 4.1:
“
4.1
It is highly improbable that all the witnesses for the state falsely
implicated the accused.  All the witnesses indicated
that they
never had any problems with the accused.  This can also be seen
in the fact that Ms Miriam Mnguni answered to a
question put to her
during cross-examination that she is not saying that the accused
killed the child.  She was only testifying
about what she
experienced that day.
4.2  It is respectfully highly improbable that the mother of the
deceased, Lerato Mnguni and the neighbour Siyabonga Sekumbune
planned
the incident.  If they planned it as the accused wants the court
to believe that Siyabonga has to rescue the deceased
and get rid of
accused, the deceased would not have been killed.
4.3  It is respectfully submitted that it is further highly
improbable that the accused was able to send messages to her sister

in Lesotho, but not seek help from anyone else in South Africa who
will be able to help her.
4.4.  It is highly improbable with respect, that accused was
forced to drink a concoction that left her unconscious.
Dr
Algabodian testified that if she swallowed any substance that caused
her to become unconscious, she would have died, if she
did not
receive the antibodies.
4.5  It is respectfully submitted that it is highly improbable
that the accused would swallow the substance.  It is further

highly improbable that she would drink a lot of the substance not
knowing what it is.
4.6  It is highly improbable that the attackers will know where
to find any substances in the house that can be used to poison
the
accused and then after they prepared the substance, they will replace
the containers on the exact same spots where they were
initially
found.
4.7  It is further highly improbable that the attackers knew
where to get the bandages used to tie around both the deceased
and
the accused mouth and neck respectively.
4.8  It is highly improbable that Siyabonga will commit this
offence to take revenge due to dissatisfaction with money owed
to him
and then nothing was stolen during the incident.
4.9  It is further highly improbable that Siyabonga will rescue
the baby as part of the plan by him and the mother of the
baby, but
then kills the baby and leaves him inside the house”
I agree with
the submissions in this regard.  To that I would add a few
more.  Firstly, if Lerato got rid of her, the
accused, she could
not explain who would then look after the child.  This is highly
improbable.
When pressed about her reason why would Lerato
would want to get rid of her, her answer being that it was to rescue
the child and
there is no reason therefore, she became extremely
evasive and did not want to answer the question.
(2)  She conceded that it was easier to fire
someone than to kill someone in her own home, so if it was Lerato’s
plan,
it is improbable to embark on such a course.  The accused
averment is improbable and false.
(3)  On the version of the accused, she only
heard Siyabonga saying “knock, knock.”  How she
could recognise
his voice from that is unconvincing and improbable.
She appears far too keen to implicate him as soon as possible.
(4)  Her assertion that when she heard
Siyabonga, she thought it might be Miriam, the aunt, that has sent
him to pick up something
she forgot, is a surprising allegation and
does not make sense.  Not only is it improbable, but she never
testified about
that in chief nor was it put to Miriam the aunt.
(5)  She stated that she had a long-sleeved
pyjama top on.  How she could then feel being stabbed I find
highly improbable
especially as we now know, it was probably caused
by a needle or pin and that it was only scratches.
(6)  The biggest improbability of all is that
she opened up for Siyabonga without asking what he wanted at that
time, 05:00.
Her answer that she opened, because “he is
allowed as a child in the house” (and he was therefore
trusted), flies in
the face of his subsequent attack on her.
(7) The fact that she first unlocked and opened
the wooden door, then saw the other two males, but yet continued to
open the security
door “quickly”, sounds highly
improbable and nonsensical, especially as she testified the faces of
the two unknown
men changed once she had opened the burglar door.
(8)  Her assertion that she only saw the
knives when they were rushing her, as they came in (and not earlier
when she opened
it), how she could see that only once she started
running away, sounds similar, highly improbable.  In any event,
she has
contradicted her evidence-in-chief where she stated that that
she saw them with the knives already outside once she had opened the

door.  She could not explain the shift from outside to inside
the house as to when she saw the knives.  Her answer when
this
contradiction was put to her is not only laughable but improbable.
She compounded the improbability of the above
scenario by suddenly coming up with a description of these knives,
i.e. that they
were okapi clasp knives.
(9)  Of course the knives landed her in even
further trouble as she could not explain the improbability thereof
where they
were when she described them grabbing her at the wrist and
she could not say what had happened to the knives in the meantime.

The fact that one of them also held his hand over her mouth is even
more improbable.  This scenario of them holding her by
her hands
does not leave any possibility that they could have knives at that
stage.
(10)  The concoction she was forced to drink
was smelling and bad, yet she drank it all.  That is a highly
improbable
action.  The fact that the jug is nowhere to be seen
on the photographs is just another glaring improbability.
(11)  She could not explain the glaring
improbability, if she was lying on the ground with her fists held in
front of her,
how they were then able to “stab” her as
she alleged she felt it.
(12)  We know now it was not stab wounds, but
self inflicted scratches on the inside of her arm.  It is
in any event
improbable that she could have sustained them if her
hands were held in front of her as if she was defending herself as
she alleged.
She could not explain this.  In fact it can
be factually found to be a lie and her description must therefore
fall by the
way side as impossible.
She conceded it was put to Siyabonga that he and
his friends came to the deceased place to rob them and she told her
advocate so.
I pause here to state that I find this choice of
words “friends” interesting.  Why would she describe
them as
friends.  His friends were Banele and Timothy.  Yet
apparently, they were not there.  Quare, who were they?
It was put to Siyabonga that they went to the
deceased place to rob and as stated, she told her advocate so.
When asked why
it was not put as a result of taking revenge and
whether she told her advocate so, she became extremely evasive and
did not want
to answer the question.  Clearly it was not put as
such and as it is such an important part of her version, the mere
fact
that it was not put, must lead to a negative credibility finding
in that regard.
(14)  She could not remember if her hands
were tied, which is already strange and improbable, but then she
could not explain
where the bandages came from.  Her answer that
she did not see is not only improbable, but false.  The bandages
were
clearly there.  See EXHIBIT C, photograph 27 as well as the
fact that the bandage around the mouth of the deceased was never

disputed in evidence.
(15)  Her totally inability to explain why
she did not call for help or contact the police.  Her answer
being “It
did not come to my mind.”  It is so
ridiculous, it must be rejected.  Her reference and concern for
the baby is
belied by the whatsapps as there is absolutely not
reference to the baby in it.  Not much needs to be said as to
her explanation
that the word “blackmail” in EXHIBIT H,
was meant to be an attack.  It is rejected out of hand as to be
improbable
and false.  In fact, I find it is a lie.  The
fact that the “blackmail” is used in the vernacular, she
could
not explain as well as the fact that there was no reference to
Siyabonga’s name being mentioned in the Whatsapp, EXHIBIT H.

The fact that according to her, neither Miriam or Lerato asked her
where the child is, cannot be true, as it is just not reasonably

possibly true. It is so improbable.
There are far more improbabilities, but the above
would suffice.  Ms Scheepers in paragraph 5 of her heads of
argument, briefly
deal with some contradictions in the version of the
accused.  I quote from paragraph 5.1 to paragraph 5.3:
“
5.1
accused version that the mother of the deceased, planned this
incident was never put to any of the witnesses in order
for them to
answer to it.
5.2  the accused testified that the witness Siyabonga Sekumbune
stayed in the kitchen while the other two men followed her
to the
bedroom and that he only came to the bedroom later, carrying a jug
filled with a substance which he gave to the two men
to give to her.
That was never her instruction to her legal representative as it was
put to the witnesses that all three
men followed her to the bedroom
and that Siyabonga was the one that forced her to drink the
substances.
5.3  it was accused instructions to her legal representative
which instruction was put to the witnesses that accused does
not know
how she sustained the injuries on the her arms.  The accused
however testified that while the men were busy forcing
her to drink
the substance, it felt like she was stabbed by a sharp object.”
I agree with
these submissions made by Ms Scheepers and I find accordingly.
It is significant that both in respect of Miriam
and Lerato Mnguni,
both were adamant that the accused used the word poison in describing
what she was forced to drink.  By
the time she testified, she
stayed very far away from the word poison and said she was forced to
drink a liquid or words such as
a concoction.
Clearly it is an inference, because she was now
aware of the medical evidence in that regard as to the ingestion of
poison.
In fact, it is not only significant, but once again,
she clearly told the court a lie.  I reject her whole version of
being
attacked by Siyabonga and his two friends on the morning of 18
October 2019 just after 05:00 and that she was forced to drink
poison.
I reject her version of being forced to drink
anything and especially not poison by Siyabonga and his cohorts.
I reject her
version that she was ever attacked by knives and that
caused the injuries to her arms on the inside.  There were no
knives.
The court finds that as a fact.  I find that the
wounds on her arms were self inflicted and on a balance of
probabilities
was caused by the needle visible in photograph 6 –
8 of EXHIBIT D.  I reject her version that Siyabonga kidnapped
and
took the deceased from her bed and out of the house.  I
found that Siyabonga was not there and was in fact at his home
sleeping.
I reject her version that the accused ever lost
consciousness although I must state that under cross examination,
she vacillated
so much between whether she had lost consciousness or
not, that it was not clear exactly what she was trying to say to the
court.
I reject her version that she was not seen outside
the house at 14:30 on 18 October 2019 by Tshwarelo Petunia Ntuli.
I find
that she was there dressed in a short-sleeved T-shirt.  I
specifically find that stepping back and looking at all the evidence

in totality, that accused deliberately lied about the following:
Being attacked by Siya and his friends, that she was forced
to drink
a poison, that she was injured in the attack on the inside arms by
the attackers.  That Siyabonga kidnapped the child,
that she did
not know that the deceased was still in the house and that she lied
about causing the death of the deceased.
I then need to make some findings:  As to
that this case is based on circumstantial evidence.  Before I
ever do that,
I need to set out the legal position dealing with
circumstantial evidence as well as the proof of intent and motive.
I first deal with circumstantial evidence.
(1)  Circumstantial evidence is not necessarily of less value
that direct
evidence.  In certain circumstances, it can carry
more weight than direct evidence.  See in this regard,
State
v Tshabalala
1966 (2) SALR 297
(AD) at
299B – C.  (2)  Deductions are made from
circumstantial evidence and therefore logical rules must be followed

in order to avoid speculation.  (3) The court must not consider
each circumstance in isolation.  In
Rex
v de Villiers
1944 (AD) 493 at 508 –
9, Davis AJ of Appeal was reported to have said the following:
“
But
I should not leave this point without dealing shortly with an
argument pressed upon us by Mr Morris, that in a case depending
on
circumstantial evidence, ‘the court must take each factor
separately, and, each of them is possibly consistent with innocence,

then it must discard each in turn’
This argument is fallacious.
It is in the first place  inconsistent
with my brother
Watermeyer in
Rex v
Blom
1939 (AD) at p 202:
‘
The
proved facts should be such that they exclude every reasonable
inference from them, save that one sought to be drawn.’
It is not each proved fact that must exclude all
other evidence, the facts as a whole
must do so.
I then refer to the quotation of
Best
Evidence
the 5
th
edition:
‘
Not
to speak of greater number;  Even two articles of circumstantial
evidence- though each taken by itself weigh but as a feather,
join
them together, you will find them pressing on the delinquent with the
weight of a mill-stone…  It is of the utmost
importance
to bear in mind that where a number of independent circumstances
point to the same conclusion, the probability of the
justness of that
conclusion is not the sum of a simple probabilities of those
circumstances, but the compound result of them.’
See also
Evans
in respect of
Pothier on Obligations
(paragraph
2.242 and
Wills on Circumstantial Evidence 7
th
Edition page 46):
“
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 at 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.”
This is all
still a quotation from
Rex v de Villiers
1944.
(4) When reasoning by way of inference, there are:
“
There
are two cardinal rules of logic”
Which have to
be followed, as set out by Watermeyer, Judge of appeal in
Rex v
Blom
1939 (AD) 188 at 202 – 203:
“
(1).  The inference sought to be drawn
must be consistent with all the proved facts.  If it is not, the
inference cannot
be drawn.
(2).  The proved facts should be such that
they exclude every reasonable inference from them save the one sought
to be drawn.
If they do not exclude other reasonable
inferences, then there must be a doubt whether an inference sought to
be drawn is correct.”
(5).  The application of these rules was
reinforced by Smallberger, acting judge of appeal, as he then was in
State v Mtsweni
1985 (1) SALR 590
(AD) at 493E:
“
[Afrikaans]
[02:08:57]”
The
opmerkings
from Lord Wright in
Caswell v Powell Duffryn and
Associated Colliers Limited
(1939) 3 All England Reports
722 at 733:  “[Afrikaans]  [02:09:40]”
“
Inference
must be carefully distinguished from conjecture or speculation.
There can be no inference unless there are objective
fact from which
to infer the other facts which is sought to be established.  In
some cases the other facts can be inferred
with as much practical
certainty as if they had been actually observed.  In other
cases, the inference does not go beyond
a reasonable probability, but
if there are no positive proved facts from which the inference can be
made, the method of inference
fails and what is left is merely
speculation or conjecture.”
Then further
on, the same quotation at 594 of the
Mtsweni
judgment
[Afrikaans] [02:10:50]
In other words the mere fact that the accused is
found to be a liar does not necessarily mean he has committed the
offences.
I then turn to deal with further aspect as to the
proof of motive and I refer here to the well-known minority judgment
of Malan,
AJA in
Rex v Mlambo
1957 (4) SALR 727
(AD) where he is reported to have said the
following about the proof of intent in such circumstances at 737 C to
F:
“
Proof
of motive for committing crime is always highly desirable, more
especially so where the question of intention is an issue,
Failure to
furnish absolutely convincing proof thereof, however, does not
present an insurmountable obstacle because even if motive
is held not
to have been established, there remains the fact that an assault of
so grievous a nature was inflicted upon the deceased
that there have
resulted either immediately or in the course of the same night.
If an assault  “using the term
in its widest possible
acceptation is committed upon a person which causes death, either
instantaneously or within a very short
time thereafter and no
explanation is given of the nature of the assault by the person whose
knowledge it solely lies, a court
would be fully justified in drawing
the inference that is was of such an aggravated nature that the
assailant knew or ought to
have known that death might result.
The remedy lies in the hands of the accused person and if he chooses
not to avail himself
thereof, he has only himself to blame if an
adverse verdict is given.”
Then at 738
a-d:
“
in
my opinion, there is no obligation upon the crown to close every
avenue of its 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 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 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.  More over if an accused deliberately
takes the risk of giving false evidence
in the hope of being
convicted of a less serious crime or even, perchance, escaping
conviction all together 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.”
Ms Scheepers,
Mr Maimela I need another 15/20 minutes.  Can I proceed or must
we adjourn at this stage?
MS
SCHEEPERS
:   I have no
objection if we proceed M'Lord.
MR
MAIMELA
:   I have no
objection M'Lord.
COURT
:
Thank you.
I then turn to make the following factual
findings:
1.  Accused was the only person in the house
with the deceased shortly after 05:00 on the morning of 18 October
2019.
She was found in her bedroom at 16:00 that same day.
Her hands were not tied and her upper body was naked.
2.  The deceased was found in a storeroom
marked A1 in EXHIBIT C,  immediately adjacent to the bedroom of
the accused,
marked ‘B’ in the sketch plan  EXHIBIT
C.  He was found there by Miriam Mnguni soon after 16:00 on 18
October
2019.  The deceased was lying on the floor.
3.  There was a bandage around the mouth of
the deceased to the back of the head of the deceased.
4.  The deceased died of a fractured neck
with asphyxia.
5.  The cause of death was caused by external
pressure supplied to the mouth and neck area.
6.  There were no signs of poisoning found in
the deceased body at the post-mortem.
7.  Death would have ensued very quickly with
the fracture. With asphyxia it would be less than three minutes.
If there
is a combination of the fractured neck an asphyxia the time
would be less than three minutes.
8.  The house was locked and the keys were
found inside on the floor marked ‘X’ on photograph 3 of
EXHIBIT C.
9.  Nothing was missing or stolen from the
house.
10.  The blinds and curtains at the front of
the house was closed.  They were usually opened by the accused.
From
the window, to the left of the house visible in photograph 1 of
EXHIBIT C, if you scream from there, you will be heard.
11.  A bandage was found around the neck of
the accused and this bandage is visible on the floor next to where
she was found
next to the cupboard in photograph 27 of EXHIBIT C.
12.  The accused was found praying saying
“God what is it I have done?”
13.  Both the bandages  found around the
mouth of the deceased, around the neck of the accused and on the
floor next to
the accused, came from a cupboard in the room of the
accused.
14.  The accused was found to have
self inflicted scratch marks on the inside of her arms.
The needle visible in
photograph 4 of EXHIBIT D was found in her room
stuck inside her bed.
15.  The accused was found not to show any
signs of poisoning.  She was not poisoned.
16.  Siyabonga and his two friends did not
attack her on the morning of 18 October 2019 just after 05:00.
The deceased
was not kidnapped and taken by Siyabonga Sekumbune.
He and his two friends were not in the house at the time.  The
court
finds he was at home sleeping.
17.  Accused was seen at 14:30 on 18 October
2019 outside the house at 12466 Malete Street Daveyton by Tshwarelo
Petunia Ntuli.
Accused was wearing a short-sleeved T-shirt and
was physically normal.
18.  She sent Whatsapp messages, the first at
06:29 on 18 October 2019 as per EXHIBIT H and the translation,
EXHIBIT H2. (This
is just a remark.  The contents of these
whatsapps are ominous.  They for example refer to the word
“blackmail”,
but there is no explanation given
therefore.  The court cannot make any finding in that regard.)
19.  The accused lied to Miriam and Lerato
Mnguni about being attacked by Siyabonga Sekumbune and two friends at
05:00 on the
morning of 18 October 2019.  She lied about being
forced to drink poison and or being poisoned.  She lied about
the deceased
being kidnapped by Siyabonga Sekumbune.  She lied
about being injured on her inside arms and she lied about the
knives.
She also lied about not being outside the gate at 14:30
on 18 October 2019.
Bearing in mind all of the above, the only
reasonable inference from the proved facts to the exclusion of all
other inferences is
that the accused and she alone is responsible for
the death of the deceased.
It matters not that there appears to be no clear
motive and that it is not known exactly how the deceased was killed
as our law
does not require the same.  The contents of EXHIBIT
H, the screen grab of the Whatsapp messages and H2 the translation
thereof,
is ominous.
“
My
heart bleeds.  It is better I die than being blackmailed.”
She later refers to her dead corpse and also
refers to boys being paid.  The word blackmail also appeared in
the vernacular.
Usually blackmail and kidnapping is found hand
in hand, but there is no explanation by the accused in this regard as
she does not
even use the word kidnapping in EXHIBIT H.
With reference to the earlier case of
Rex
v Mlambo
, the accused had the key in
her pocket to tell the court what really happened.  She chose
not do so and she must now suffer
the consequences thereof.
As to the form of attention, according to Dr
Beccia who performed the post-mortem examination EXHIBIT B, external
pressure must
have been applied to the mouth and neck area but he
states more in favour of the neck.  With a fracture to the neck,
death
would have ensued very quickly and with asphyxia, up to three
minutes.  A combination thereof would take less than three
minutes.
Bearing that in mind, the only form of mens rea can be
that of
dolus directus
.
In this regard  I refer to the case of
Rex
v Lewis
1958 (3) SALR 107
, a judgment
of the appellate division.
This case deals with strangulation and I quote
from a judgment of Malan, Judge of appeal:
“
If
death had been caused by strangulation, it would have involved the
application of pressure to the windpipe for a period of from
three to
five minutes and would have had to be sufficiently severe to exclude
air from the lungs completely for that period.”
I then quote
further with reference to the actions of the accused.  In that
case, Malan, Judge of appeal stated further:
“
His
decision to apply pressure to the throat, was therefore, a deliberate
act designed to be effective and in order to be effective,
it had of
necessity to be severe, continuous and of some duration.”
Momentary seizure followed by immediate release
would obviously have served little or
no purpose.”  I
quote further:
“
The
inherent danger of the application of pressure to the throat and neck
for even a very brief period, must be present to the mind
of even the
most dull witted individual and, apart from explanation, in
performing such an act, the assailant either realises this,
or
recklessly disregards it's probable consequences.  The
application of pressure manually as in the case before us is an

aggravating circumstance, because the assailant throughout not only
fully alive to the degree of force exerted by him he is, by
reason of
his manual contact with the throat, warned of the victims reaction to
the pressure applied.”
The accused has been charged with murder in
respect of count 1 read with the provisions of
section 51(1)
of Act
105 of 1997.  That means planned or premeditated murder.
On the facts before me and Ms Scheepers and Mr Maimela,
both concede
this, I find that there has not been any planning. A conviction of
murder read with the provisions of section 51(2),
that is
murder other than planned murder of Act 105 of 1997, should follow.
As to the second count, there can be no doubt that
the accused should be convicted of defeating or obstructing the
course of justice.
Accused must stand.
Ms Tsabane, you are convicted of:
(1)  Murder read with the provisions of section 51(2) of Act 105
of 1997.
(2)  Defeating or obstructing the course of justice.
BROODRYK,
AJ
JUDGE OF
THE HIGH COURT
DATE
:
2021.01.23
For the
State    : Adv S Scheepers instructed by the Director
of
Public Prosecutions, Gauteng Division,
Pretoria
For the
Defence : Adv Maimela