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[2021] ZAGPPHC 156
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S v Maduane (CC82/2019) [2021] ZAGPPHC 156 (15 March 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
CASE
NO: CC82/2019
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHERS JUDGES: NO
(3)
REVISED
DATE:
15 March 2021
SIGNATURE:
I
n
the matter
between:
THE
STATE
vs
COLLINS
LUCKY
MADUANE
Accused
JUDGMENT
Bam
J:
1.
The
accused
i
s
standing
trial
on
a
charge
of
murder,
allegedly
committed
on
3 March
1999
.
The
deceased
was
Ms
Florah
Mahlo
(initially
the
accused
was
also
charged with
theft
of
the
cell
phone
of
the
decease
d
.
This
charge,
objected
to by
defence
counsel
,
howeve
r
,
fell
away
due
to
prescription
- the
crime
was
allegedly
committed
more
than
20
years
ago).
The
indictment
was
amended
by
the
insertion of a
reference to Section
51(1) of Act
107 of 1999
.
2.
The
summary
of substantive
facts attached to the
i
ndictment
reads as
follows
:
a)
The accused
and
the
deceased were
in
a
love relationship at the time of
her
death
.
b)
On
3
March 1999
the
accused and
the
deceased
had
an
argument.
Screams were heard by
the tenants on
the premises where the deceased
and
the
accused
cohabitate
d
.
c)
The following
day the friends of the deceased enquired from the accused
about
the
whereabouts of
the
deceased
.
He
informed
them
that
she
went to
Johannesburg
to borrow money from her aunt. She was not seen again by either
friends or
family, after
this
day.
d)
Shortly
hereafter
the accused
informed a
friend
of
the
deceased
that
he
was selling her
cell phone
.
e)
On 23 June
2019 the accused
confessed
to the family
and friends
of the
deceased that he
killed
the
deceased.
f)
He
confessed that
he
killed
the deceased
,
wrapped her
body and
deposited
it
at
an
open
premises
as well
as
a
drain, where
he set
her body
alight.
Hereafter
he
chopped
her
body
in two
pieces
.
He buried
one
piece
in
a
deserted
premises and another he
dumped into
a drain
.
He pointed
this out
to the family
.
g)
The pieces of the body were never retrieved.
3.
The accused
pleaded not
guilty
,
but
advanced no
plea
explanation
.
4.
The
following
formal admissions
were made
by
the accused
.
1.
That
the
Accused was
in
a
relationship
with
Florah
Mahle
during
the
course of
1
998
until 1999
2.
That the
residential address of Florah Mahle
was situated
at 5[...] Block
"
[…]
",
Soshanguve
.
3.
That
on
13 August
2019
official
photographs
were
taken
by
Capt.
T W Beheydt at
5[...] Block
"
[…]'
,
Soshanguv
e
,
as was
i
ndicated
by Sergeant M J Chauke
.
The sketch plan
,
photo album and key
thereto
marked as
ANNEXURE
"A"
5.
The
State
adduced
the
following
evidence:
5.1
Ms T
P
Morena.
In
1999
she
attended
Techn
i
con
North
,
Gauteng
.
She
was
21 years
of age
.
She
rented a room
at a
house
in Block […]
,
Soshanguve
.
Other
students
also
rented rooms
.
The alleged
deceased,
"
Florah
",
occupied a
room next
to
hers
.
The accused
l
ived
with Florah
.
The last
time
she
saw
Florah
was
on
3
March
1999.
That
night
she
was
awoken by
screams coming from Florah
'
s
room
.
She heard two
screams
.
It sounded that
Florah
was
being assaulted
.
The
second
scream sounded
as
i
f
Florah was
being
throttled. The
next morning
she saw the
accused who
volunteered the information that Florah had gone to Johannesburg to
see her aunt. When she asked him about the screams
he did not answe
r
.
She did not
know whether the accused slept in that room thereafter
.
After
a few days she
noticed a very bad smell coming
from
the
room
of Florah
.
The
accused
explained that
the
smell
came
from the
fridge where
Florah
had switched
off the power
and meat had gone
bad.
Florah was
a happy person
and
would
always
inform
her
if
she
was
going
somewhere
,
and
was never gone
for many days
.
Florah never
returned.
Cross
examination
.
The
accused
denied
that the witnes
s
'
s
room was
next
to that
of
Florah
.
I
t
was
put
that
the
accused
would
say that
she
made a mistake
when
she
said
she
heard screams
.
This
was
denied
by the witness
.
She
conceded
that
it was
not
recorded
in
her
witness
statement
that
it
sounded
as
if
Florah was
throttled
.
I
t
was also pointed out that she did not say anything about a
rotten
smell
in
her statement.
I
t
was
then recorded
that
the
accused would
say that the
smell
in
the corridor was
caused by food
on a
hot
plate
l
eft
by the deceased
.
I
t
was further recorded that the accused did not sleep in that
room every
night. This was
denied. She
said she did not call the
police because
she
heard only two
scream
s
.
Upon
requested
by
the Court she
drafted a sketch of the outlay of the
rooms occupied
by her
and
others of the residence where they lived
,
"
Exhibit
AA
".
5.2
Ms Cathrine
Debeila.
She also
l
ived
in a
room
in the
said
residence.
She knew the
accused and
Florah
.
They
had a love
relationship and occupied
a room across
the passage from
her room
.
The night of 3 March
1999 she
heard
three
loud
screams
coming
from
Florah
'
s
room
.
She
did
nothing
about
it
because she
thought they were fighting
like other
people
.
The next
day she asked
the accused about the whereabouts
of Florah
.
The accused
told
her
that
Florah
had
gone
to
her
aunt
in
Johannesburg
.
When
she
asked
him
about
the
screams
,
he
did
not answer.
She
and
the
accused
then decided
to hold a braai. Before they went to the butchery they were
in
Florah
'
s
room
.
The room
was
"mixed
up
"
(disorderly).
The
sheet
and
blanket
was not
on
the
bed
and
there
was a
heap
of
washing
in
one
corner. She
found the situation strange because Florah was a very orderly
person
.
I
t
seemed
that
the
people
had
a
fight.
About
three
days
l
ater
a smell
started
developing
in the
corridor
coming
from
Florah's
room
.
The
accused would
come and sleep
i
n
that
room every
night.
I
t
seemed that
he
was under
the
influence
of
alcohol.
She
asked
the
accused
about
the
smell
and
he
said
he had
half
of
a
sheep
'
s
head
i
n
the
room
which
had
gone
bad
.
The fan in the
room
was
always
on
.
Of character
,
Florah was
a
happy person
.
Cross
examination
.
I
t
was
recorded
that the accused would say that he did not remember this witness
.
She
conceded
that
she
did
nothing
upon
hear
i
ng
the
screams
,
but
added
that
it was
in the
early
hours
of
the
morning
.
I
t
was
recorded
that the accused would deny that there were
scream
s
,
and that he
did not
say
that Florah
went to
Johannesburg
.
In
respect of
the
smell
the
accused
'
s
version
was
that
i
t
was caused
by
food
l
eft
on a hot plate by Florah
.
She
repeated
that
the
accused
mentioned
the
half
head
of
a
shee
p
.
The accused
'
s
version
is that he
told her that Florah went to her
mother to
collect
money
.
She said
she did not
know what
happened to
Florah
.
Upon
questions by the court she confirmed that her room is depicted on
the
sketc
h
,
Exhibit
AA
,
marked
Catherine
.
5.3
Ms TPH Baloyi
.
She was
also a student
and
lived several
houses from
where Florah
rented a room
.
They were good
friends
.
Florah would
visit
her
at her shop when she passes by to school, and she visited Florah at
her room
.
She knew the
accused very well. She called Florah on her cell
phone for
three days after
her
disappearance
,
but
cou
l
d
not reach her
.
The accused
then
visited
her. He
was
in possession of Florah
'
s
Nokia cell
phone and
asked her to enter the PIN numbe
r
.
She d
i
d
not have
i
t.
She asked
him
where Florah
was
and
he
responded
that
she
went
to
a relative
.
This
she
found
very
strange
because
Florah
always
told
her
where she
was
going
.
Cross
examinatio
n
.
It
was recorded that the accused did not recognise her at all
,
even after
the Court had
requested her
to remove her
mask
.
I
t
was recorded
that
the accused
would deny that he visited her and that he was in possession of
Florah
'
s
cell phone
.
She repeated that she
knew the cell phone well
.
She
conceded
that
she
did
not
tell
the
police
shortly
after
Florah
'
s
disappearance that
the accused was in possession of the cell phone
,
but
that she
only
said
that in
a
statement she
made
8
months later
.
5.4
Trial
with
i
n
a trial.
5.4.1
Adv Ngobeni
i
nformed
the Court that the state intended to adduce evidence that the accused
had made admissions and confessions
i
n
the presence
of several people
.
The people
included
the
sister of the
accused
,
Cynthia
Msiza a friend
of the
a
c
cused
and
Florah
,
called Nancy
,
who is
a
sergeant in
the SAPD
,
but
who was
present
as
a
friend
of
the
accuse
d
,
and
after
being
summoned
by
the
accuse
d
,
as
well as
the
mother
of Florah
.
5.4.2
Defence
Counsel
contested
the
admissibility
of
the
alleged
confessions
made
by
the
accused
on
the
following
ground
s
:
1.
The
statements
made
by
the
accused
were
not
made
voluntarily;
2.
The
accused
was
enticed
to
make
the
statements
;
3.
The accused
was assaulted by
a
woman
,
which led
to
the
police
being
called
;
4.
The accused
was
not
in his sound and sober senses
,
in that he
was
intoxicated,
under the influence of alcohol
;
5.
The statements
were
made to a
pol
i
ce
officer
,
a
sergeant
at
the time
;
6.
That the
accused
was
mainly
influenced
by the witnesses
to
make
statements
.
The
court ordered
that a trial
within a trial should be held
:
5.4.3
Ms Cynthia
Msiza
Ms
Msiza
is
the
sister
of the
accuse
d
.
He is her
elder
brother
.
They
have
several
other
siblings
.
Her
relationship
with
the
accused
was
very close
.
Since
the
year 2000
the accused
told her
on
several
occasions
that
he
had
killed
Florah
.
At
the
time he
was in
jail
for
other
cases.
He told
her
he
could
not sleep
because
Florah
'
s
spirit
was bothering
him
.
He told
her she was
the woman
he
stayed with at
the
time
.
When
she
asked
him
why he
did
not
plead
guilty
to
that
crime
,
he said he killed
her but that
there was
no
evidence
.
He gave
her
a
short
version
of
what
he
had
done:
He
said
he throttled
her
and
rolled
her
body
in
a
mat,
that
he
bought
5
l
i
tre
petrol,
that
he took the
body to an open field where
he burned
i
t.
At the time he told her what
happened
he
was
in
jail
and
in
his sober
mind
.
She
happened
to
visit
him
every
week
whilst
he was
in
jail
and
he told
her on two
occasions
what
he did. She
never
influenced
him and he
volunteered
the
information,
indicating
that he
was suffering
.
She
then told
her parents
what the
accused
had told
her, but her
mother said he
was lying. In
2019
,
the accused
was at
their
home
.
Her
daughter
told
her
that
she
had
a
problem
with
the
accused.
When
she confronted
the accused
he told
her he was
going
to
kill her child
and
that
he
was
going
to
get
hold
of
a
firearm
.
The
accused
was
sober
but
angry
.
She
reported
this
to the
police at
Soshanguve
,
but
they
had
no
vehicle
available to
assist
her.
She
knew
the
accused
well
and
knew
he would
carry
out
his threats
to
kill them
.
When
she
got
out
of
the
police
station
she
found
the
accused
waiting
.
They
returned
home
and
she
wanted
to
calm
him down
.
She
then
called
one of their
friends
,
Nancy
,
to assist. At
the time
Nancy
was
a
police
officer.
On that day
Nancy was
not on duty
and attended
as a friend
and
not
in
her
capacity
as
a
police
officer
.
The
accused
was
very
happy
to
see Nancy and
got
i
nto
her
vehicle.
The accused
said Nancy
is
his friend and that
he did
not want
a
Nancy who
is a
pol
i
ce
officer
because what
he was
about
to
say
will
send
him to jail.
The
accused
then
called
on
her to
accompany
them
.
He asked
whether
they
had money on
them
and
told them to switch off their cell
phones
.
She switched
her phone on
again
and
transferred
R50
.
00
to his account
,
which
he withdrew
from
FNB
.
He wanted
to
buy
liquor
.
The
accused
then
asked
them
to
drive
to where
he
and
Flora
resided.
In the
mean
time
she
managed
to
keep
her
phone
and
recorded
everything
sai
d
.
When
Adv Ngobeni
indicated
that
she
intended
to
adduce
the
transcribed recorded cell phone
evidenc
e
,
Adv
Fisher-Klein
objected
.
The
objection was overruled in view thereof that Ms Ngobeni earlier
contended that
everything the accused said to the witnesses would
be relevant to
the
question
whether
the accused
voluntarily
made
the
confession
.
The
recorded
confessions
were
admitted
in
evidence
for
the
purposes
of the
trial
within a
trial.(Exhib
i
t
"
N
"
)
Ms
Msiza stated that reason for recording the conversation was to
convince her
parents about what the accused initially told her about
having killed
Florah. She recorded the conversations
with the
accused on
both
23
and 24 June 2019
.
The record consists
of about
100
pages
,
but
there is no
need to refer in minute detail
to what was
recorded
.
The
recorded
evidence
showed that
the accused
,
i
n
detail
,
described that
he had killed Florah by strangling her
,
and that he
,
after several
days
,
disposed of the body
by chopping
it
in portions
,
burning
it
and
discarding the
remains
at
different
locations
.
It
was repeated
by Ms Msiza that the accused
freely
and voluntar
i
l
y
told her
and
Nancy
what
he
did
,
and
that
he
even
pointed
out
several
relevant locations,
i
ncluding
the room where they lived
,
and he
killed
Florah
,
and
where he
disposed
of
the
body
parts
.
No
remains
were
found
.
The
accused told them that he wanted
to
tell
them
what
happened
because
he
could
not
sleep
and
was
haunted
by
Florah's
spirit
,
which kept on
appearing
to
him
,
and even having
sexual intercourse
with
him
.
After
having informed Cynthia and Nancy about what happened he insisted
that Florah
'
s
mother should also be
called
so
that he
could
tell her
as
well.
The
next
day
,
Monday
,
Florah
'
s
mother arrive
d
.
She
found
the
accused
,
Nancy
and
Florah
'
s
mother
in
Nancy
'
s
car
.
The accused
again
i
nsisted
that they should switch off their
cell phones
,
becaus
e
,
he said
,
he did
not want
police when
testifying
to
Florah
'
s
mother
,
because what he
was going to
say will put him in
jail. They
then took their cell phones to another vehicle
,
but when the accused
went to
relieve
himself
,
she
retrieved
her cell
phone
.
She
then
again
recorded
everything
that
was
said
.
There
was
then
a
repetition
of
what
transpired and what was said the p
r
ev
i
ous
day. At a stage
the
accused
said
only
God
and
Satan
knew
what
he did
.
A
few
days
later she took
the
information
she had to
the
police
at Soshanguve
.
There
Colonel Lesibo
listened
to
the recordin
g
.
Cross
examination
1
The
accused would
deny that
he
made any
confession
to the
witness
.
In
respect of what
happened on 23
June 2019
,
the accused
would
say
that
he
was
hit
by
Ms
Msiza
'
s
daughter
,
Mpho
,
with
a
steel
telephone
table over
the
head
,
and that
he sustained
an open
injury
,
which
was
bleeding
.
The
witness
responded
that
she
knew
nothing about
that and
denied
that
the accused
had
a
bleeding
wound
when
he was
in
her
presence
.
The
accused's
reasons
why
he
made
the
confession
and
paintings
out were
recorde
d
:
He was
asked
a
lot
of
question
s
;
He
was smooth
talked into
making
the
confessio
n
.
(In
respect
of the latter reason recorded on behalf of the
accuse
d
,
despite
several
invitations
by
the
Court
,
Adv
Fisher-Klein
evaded the
issue and
declined to
record
exactly
what
"
smooth
talk
'
involved
.
)
I
t
was
further
put
to
the
witness
that
she
had
tampered with
the
recordin
g
.
Upon enquiries
by the
Court to
elaborate
on the
tampering
,
it
transpired that what
was
meant
is that
,
apparently
,
the
first part of
the recordings was not before the court.
5.4.4
Ms
A
Mahlo
.
She
is
the
mother
of
Florah
who
disappeared
on
3
March
1999
.
About
14
days
later she
l
earned
of
Florah's
disappearance
from
Nancy
,
a
friend
of
Florah.
At
Soshanguv
e
,
at
Nancy
'
s
place,
she
was
i
ntroduced
to
the
accused
by
Nancy
.
The accused
gave her the
key to Florah
'
s
room
,
but said he did not
know
whe
r
e
Florah was. When she
told
him
that
he
could
not say that
,
he
responded
that
he
was not
in
court
and
would not
answer
many
questions
.
The
accused
then
went with
them
to Florah
'
s
room
.
There he told
her that Florah went to Johannessburg
to fetch money
from
her
aunt
,
on mother
'
s
side
.
She phoned
her sister
who
denied
that
Florah had
visited
her.
Florah
'
s
room was
in
disarray
.
Even
the
pillows
were on the floo
r
.
The accused
l
eft
with a black bag
,
and said it
contained
his
belongings
.
The next
morning when
she again
visited
Florah
'
s
room
,
she
discovered
that
the
duvet
was
missing
.
Only
the
matching
pillow
cases
were
l
eft.
She
found
i
t
difficult
to bel
i
eve
that
F
l
orah
would
have
l
eft
for
anywhere
without
calling
her
.
In
the year
2007 the
accused called
her over
.
She was then
living in
Polokwan
e
.
The
accused
asked
her
whether she
was
suspicious
that
he
made
Florah
disappear
.
That
she
confirmed.
The
accused then
amongst
others
asked
her
for
forg
i
veness
.
When
she
asked him why
,
he sa
i
d
he did not have a l
i
fe
.
The accused
then received a phone call and she heard the person who called asking
the accused
whether she
had arrived. The accused
confirmed and
she heard the person
who called
telling the
accused not
to
say anythin
g
.
The
accused
then
dropped
the
call and
said
he was
l
eaving
.
When
she asked
him whether
that was
why
he called her
to
come
from
Polokwane, the
accused
confirmed
i
t
and
l
eft
.
She again saw
the accused
on
24 June
2019
.
She
,
and two
cousins
,
arrived
at a place
called
Transfer.
There she
met Nancy
,
who
phoned
the
accused
.
They
found
the
accused at
another
house
,
wh
e
r
e
they waited for Cynthi
a
.
The accused
was sober and did not
smell
of alcohol.
When
Cynthia
arrived
the accused
said what
he
was
about to
say
no policeman
should
know about.
The
accused
knew very well
that Nancy
was
a police
woma
n
.
The accused
d
i
d
not
want
to talk
in the
presence
of
he
r
two
cousins
.
The
accused
told
them
t
o
switch
off their cell phones
and to put it in
the Nissan
vehicle
she
and her cousins had arrived in
.
Whist
i
n
the vehicle the
accused
asked
for
forgiveness
and
said
that
Florah
was
not
in
th
i
s
world anymore
because
he
had killed
her
.
The
accused
then
described
that he had
killed Florah by strangl
i
ng
her
,
and
that he later cut her body in
t
o
two pieces
.
The accused
was
t
hen
addressed by Cynthia
who asked him
where
he
buried Florah
'
s
body parts. The
accused
sa
i
d
he had dumped the bottom part of Florah
'
s
body in a drain
,
and the
top
part
he
buried
where
she
rented
the
room
.
The
accused
po
i
nted
out
the
two
places
.
She
did
not
know
that
Cynthia
was
r
ecording
everything.
Cross
examination
The
cell phone she bought for
Florah was an
Ericson
.
In
2007 she was phoned by the accused
,
and
2019 she was
phoned
by Nancy
with
the
accused
present.
On
24
June
2019
they
picked
up
the
accused from a
neighbou
r
'
s
house because he did not want people
to see that he
was picked up at his mother
'
s
house
.
She denied
that
the
accused was
hold
i
ng
a bee
r
bottle
when
he
emerged from the house
.
She d
i
d
not observe
that
the
accused
had an
i
njury
on
his head
.
She
denied
that
Nancy
had
bought
the
accused
two
Savannahs. She
denied that the accused was under the
i
nfluence
of alcohol.
5.4.5
Warrant
Officer Nancy Makua
.
At
the time
of F
l
o
r
a
h'
s
disappearance
in
1999
,
she
was a
sergeant
i
n
the Police Force
,
stationed at
Shoshanguve.
She was a
friend of Florah and the accused
.
During
the evening of
3 March 1999
,
she visited Florah.
Everything was in
orde
r
.
A
few
days
after
Florah
'
s
disappearance
the
s
i
tuation
was
r
eported
to
her
.
On
5
March
1999
she
asked
t
he
accused
about
Florah
,
and he told her that
F
l
orah
wen
t
to Johannesburg to
collect
money
from her aun
t.
The accused said
Florah left in
a hu
r
ry
.
Florah
never
returned. She found Farah
'
s
disappearance strange
because
she
knew Florah
well
,
and Florah used
to
tell he
r
whenever she went
somewhere.
Florah
'
s
mother collected the
key of the room from the
accuse
d
.
In 2007
she was
informed
by Cynthia
that
the
accused
i
ntended
to convey something
to
Florah
'
s
mother
.
However
,
when
Florah
'
s
mother visited them
the accused asked her
for
forgiveness
,
but
told her he
had nothing
to
do
with
Florah
'
s
disappearance. On 23
June 2019 she
was on
l
eave
.
She was then
called by the accused
'
s
sister
,
Cynth
i
a
,
who told her
that the accused was fighting and that
she should come to
their
home
.
At the house
she was met by the
accused
,
who
smiled
and
hugged
her
as
a
friend.
Cynthia
also
exited the
house. They drove off and when she asked the accused what was wrong,
he said he was stressed, and told them to switch
off their cell
phones because he wanted to talk
.
The accused
then
said
he had killed Florah. The accused was not under the influence of
liquor
.
The accused
said he did not want the police
involved.
He
spoke to her
as a friend and that he trusted her. The accused said
he
was
stressed
because
Florah's
spirit
was
following
him.
The
accused took
them to where
a drain was
and to the
house where
Florah had
rented
a room.
These
were
the
places
where
the
accused
said he had disposed of Florah
'
s
body parts
.
At the house
where Florah
rented the room
,
the
l
andlady
chased them out. She denied that she
bought the
accused
any
liquor. On 24
June
2019
Florah
'
s
mother arrived at
Transfer. They then went to pick up the
accuse
d
.
She
denied
that
the
accused
drank
any
liquor
in
her
presence.
He
was
not
drunk.
Cynthia
was
also
present.
The
accused again
said they should put off their cell phones
.
She was not aware
that
Cynthia
was
recording
the
conversation
.
Cross
examination
She
repeated that the accused was excited when
he saw her and
denied that
he was
angry
.
The accused
spoke
about
Florah
immediately
when
they
drove
off.
When
asked
why
she
did
not
arrest
the
accused
i
mmediately
when
he
confessed
to
Florah
'
s
murder, she said that was for the investigating officer to do
.
She did
not know
that
Cynthia
was recording
the
conversation
.
When Cynthia
told her
about
it
3
days
l
ater
she approached
Lt
Col Sebande
with
the
information.
Nancy
denied
the
accusation
that
she
and Cynthia worked together to obtain
this evidence
.
She conceded
that
Collins called
her his
girlfriend
and added
that
he once
even
proposed love
to her. It was then recorded that the accused would say he
made all
the remarks to
her
because
he
was
drun
k
.
This
was
also denied
.
She did not
know about the accused
'
s
problems
with
Mpho
,
and
said
Cynthia called
her
because
the accused
was
fightin
g
.
She denied
that the accused had an injury
.
She denied that
she bought the
accused
liquor
.
I
t
was
recorded
that
everything the accused
said
was
not
voluntarily
because
he
was
drunk
.
It
was denied
.
5.4.6
Ms Elizabeth
Magagula
.
She
i
s
the
landlady
of the
premises rented by Florah
i
n
1999
.
She
did not know the accused.
On 23 June the
accused
and
two
women
arrived
at
her
premises
.
The
accused
wanted
access
to
Florah
'
s
room
.
She
was
suspicious
about
the
circumstances
and refused him entry
.
The accused
was not under
the
influence of
liquor
,
although
this appears in her
witness statement.
6
Defence
evidenc
e
:
Trial
within trial
6.1
The
accused
.
Collins
Lucky
Maduane
.
His evidence
can be
summarised as
follows. I
n
the
year 2000 he
was serving
a
sentence
in another
matter
.
Cynthia visited him
in 2001
,
2002 and 2003
,
on
several
occasions
.
He
kept
a
notebook
.
When
he
was
released
from prison
,
Cynthia
did not welcome him
with open arms
.
On 23 June
2019 he
was
assaulted by
Mpho
,
Cynthia
'
s
daughte
r
.
He
was drunk
at the time
.
After the assault
,
he intended to
lay a charge against
Mpho
at
the
Shoshanguve Police
Station
.
There he
was persuaded
by
Cynthia
not
to
do
it.
He conceded
that
he talked
to
Cynthi
a
,
Nancy
,
and
Florah
'
s
mother
on 23
and 24
June
2019
.
The
conversation
with
Cynthia
and
Nancy
was
about
the
family problem
with
Mpho.
He
remembered
that
they
drove
a
r
ound
and
even
visited
the residence
where
he
and
Florah
resided in 1999. He does
not
know why
Cynthia
called
in Florah
'
s
mother on the 24
th.
He was
drunk on
both
days and
cannot
recall
what
they
talked about
except the
family
problem
.
He
could
not
remember any
detail
o
f
the
conversat
i
on
as recorded by
Cynthia
.
Cross
examination
.
He
intended to lay a charge against Mpho for the assault
,
although
he was
drunk
.
At
that
stage
he had bathed
already
and
donned clean
clothes
.
He
denied
that
he
i
nitiated
Florah
'
s
killing
as
it
i
s
reflected
in
the
recording
transcript.
He
said that everything was
done by
Cynthia,
and
that she
l
ied
about what he
said
.
When asked
whether
Florah
haunted
him
,
he responded
:
"
/
kn
o
w
nothing
the
people
who
brought
it
will
know
"
.
He denied
that
Nancy
was
his
friend
.
It
was pointed
out
to
the accused
that
sever
a
l
witnesses said
Nan
c
y
was his
friend
,
and
that it
was never
disputed
.
He
said Nancy
also
lied
in that
regard.
He did
not know
how it
came
about that
Cynthia
and
Nancy
started
mentioning
Florah
19
years
after
her death
.
On 23 and 24
June
he
expected
that
the talk
i
ng
would
be
about
his probl
e
ms
with
Mpho
.
He repeated
that
on
the
23
rd
he
drank
about
3
quarts
of
Black
Label.
6.2
Ms Lydia
Maduan
e
.
She i
s
the mother of the accused and Cynthi
a
.
When the
accused was in
jail in the
beginning of 2000
,
she visited
him every
Saturday
.
In 2019 the
accused was staying with her
.
On
23
Jun
e
the
ac
c
used
was
assaulted
by
Mpho
.
She
did
not
se
e
exactly
what happened
but
the
accused
was
thereafter
bleeding
from
a
head wound
.
The
accused
was
drunk.
Her
relationship
with
Cynthia
deteriorated
.
Cross
examination.
She
did
not
know
that
the
accused
was
on
his way
to
lay
a
charge
against Mpho
.
She repeated that the
accused was drunk.
End
of trial within a trial
7.
The evidence
about the confession
was
provisionally admitted.
I
t
was recorded that the reasons for admitting the confessions will
follow later
.
8.
The State
closed its case
.
9.
The Accused
closed his case.
EVALUATION
10.
The
State
bears the onus
to
prove
its case
beyond
reasonable
doubt.
There
is no onus on
the accused
.
11.
The
State
adduced
circumstantial
evidence
on
the
merits
,
proving
that
on
3
March 1999
,
Ms
Florah
Mahlo
,
the
alleged
deceased
,
disappeared
from
the
rented room
where she and the accused lived
,
to never return
.
Further
evidence
included
confessions
made
by the
accused
to
his sister
Cynthia
,
and
a friend
,
Nancy, which
was secretly recorded by Cynthia on her cell phone
.
12.
The
admissibility
of
the
confession
was
contested
by
the
accused
.
After
the
confession was
provisionally admitted
in evidenc
e
,
the State
closed its case and
the accused
followed suite
,
and closed his
case
.
13.
It
was clear that
the confession was made freely and voluntarily
.
The issue
about
Nancy
being a police officer
at the time
will
be
addressed
later. The
confession
became
finally
admitte
d
.
14.
I
n
respect of the
merits
,
the
State
also
rel
i
ed
on the
r
elevant
evidence
adduced during
the trial within a trial.
15.
In respect of
the merits
,
before turning
to the evidential value of the confession,
in considering
the
circumstantial
evidence,
the
following: The
State
adduced
evidence
that
Florah
Mahlo
had
disappeared
on
3
March
1999
.
At
the
time
Florah
,
a Technicon
studen
t
,
and the
accused were
involved
in
a
relationship
and
l
iving
together. The night of 3 March 1999
,
tenants of
other rented rooms
i
n
the house, friends of Florah, heard several screams coming from
Florah
'
s
room
.
The rooms of
the said other tenants were either adjoining
or in the
immediate vicin
i
ty
of Florah
'
s
room
.
The next
morning Florah was missing. Upon enquiries directed to the accused
he said that
Florah had
gone to Johannesburg
to get money.
One version of the accused was that Florah went to her mother and the
other that she
went to her aunt. It
is common
cause
that
Florah had
disappeared on
3 March 1999
and never
returned
.
Florah
'
s
friends, and mothe
r
,
found it very
strange
that
Florah
had
gone
somewhere
without
informing
anyone
about
i
t.
Florah
never
l
eft
for
any
period
without
telling
her
friend
s
,
and
her
mother
.
Subsequent
to
Florah's
disappearance
,
it
was
found
that
her
room
was
in disarray.
About three days
l
ater
the other tenants of the house noticed a terrible smell coming from
Florah
'
s
room. The
accused, when
asked
about the
smell
,
had different
explanations
;
one being that
the smell came from rotten meat in a
fridge of
which
the
electric
power had been
switched off
,
another was that
Florah
had
forgotten
food
on a
hot
plate
i
n
the
room
.
A
few
days
later
,
the
accused
attempted to sell Florah
'
s
cell phone to a
friend of Florah
.
The only
inference to
be
drawn is
that Florah
was probably
killed
the
night of
3
March 1999
.
16.
Although
the evidence
of
Florah
'
s
screaming
and the
accused
'
s
controversial
explanations
were
challenged
during
cross
examinatio
n
,
the
accused
did
not
testif
y
,
and that
evidence
was
not rebutted
.
Taking
i
nto
account
all
the
circumstances, Florah
disappeared
under highly suspicious circumstance
s
,
and
the accused
was the
l
ast
person to see her al
i
v
e
.
17.
If
the
State
would have
relied
only
on
that
evidenc
e
,
before
finding
that
it
constitutes
proof that
Florah was
murdered by
the accused
,
it
has to be found
that that is
the only reasonable inference to be drawn from the
circumstance
s
.
Adv
Fisher-Klein,
appearing for
the accused,
was unable
to
submit that
any
other
reasonable
explanation
could be
drawn
from the
circumstances
.
Adv
Ngobeni
emphasised
that
there
was no
other
inference
to
be
drawn
.
18.
I
am
satisfied
that the
aforesaid circumstantial evidence proves
beyond
reasonable
doubt
that
the accused
murdered Florah
that
night
of
3
March 1999
.
However
,
that is not where the
accused
'
s
woes ended
.
The
State
adduced the
evidence
of
a
confession
the
accused
made
to
his
sister
,
Cynthia
,
in
the
beginning
of
2000,
and
on
23
and
24
June
2019
to
Cynthia
and
his
friend
,
Nancy
,
as
well
as
to
Florah
'
s
mothe
r
.
The
admissibil
i
ty
of
the
co
n
fessions
(excluding
the
confession the
accused made
to Cynthia in
the beginning
of
2000
,
which
was
but
denied
by
the
accused)
was
contested
on
several
grounds
,
namely
:
That the accused was
assaulted by another woman
;
that he
was under
the influence
of liquor at the time
;
that he was subjected
to severe questioning
;
that he
was
smooth
talked
into
confessing
;
and that the
confession was made to
a pol
i
ce
officer
(Sergeant
Nancy Makua
)
,
with no
compliance
with
the
provisions of
Section
217
of
the
Criminal
Procedure
Act.
It was
further
raised
that
the
accused
'
s
constitutional
rights were
also violated
in that his
rights were never explained to
him
by
Nancy
Makua.
19.
The
first
confession that he had killed Florah
,
the accused
made to Cynthia
in
the beginning
of 2000
,
whilst he
was in
prison
.
Subsequently
,
on
23 and 24
June 2019
,
the accused
repeated the confession
that he
had killed
Florah
,
to Cynthia
,
which was secretly
recorded by
Cynthia
on her cell
phone. At that stage Nancy Makua
,
a
police
officer
,
was
present.
The
Court
allowed
the
State to
adduce
evidence of
the recorded confession on the basis that the contents thereof was
intrinsically l
i
nked
to the
issue
whether the
a
ccused
made
the
confession
freely and
voluntarily
.
20.
The accused
testified and contested the admissibi
l
ity
of the confessio
n
,
mainly on the
basis that at the time he
was under the
i
mpression
that the conversation was about the family problem
,
and
that he was
under the influence of
l
iquor
and could
not
recall
what he
said
at
the
time
.
21.
I
t
is
of
i
mportance
to
take
into account that according to the State
witnesses and
the
recorded
confession
what prompted
the accused to
confess
,
was apparently
his conscience
in being
troubled at
night
by the
haunting
spirit of
F
l
orah
.
The
evidence
of
Cynthia
and
Nancy
,
in
that
regard
,
confirmed
by
the
recorded
conversations
,
is clear
,
and
has
to be
accepted
.
Th
e
accused called on
Cynthia
,
Nancy, and Florah
'
s
mother to listen to
him baring his soul in an attempt to set
his mind at
rest. The accuse
d
'
s
version that he was drunk and could not recall
any detail of
the
conversatio
n
,
is not
reasonable
possible
true
,
and
had to
be
rejected
.
22.
Nancy was
present during
the recorded
conversation
in
her capacity
as a friend
of
the
accuse
d
.
This
is
also
borne
out
by
the
accused
'
s
specific
remar
k
,
in
addressing
Cynthia
and
Nancy
,
that
he
did
not
want
(other)
pol
i
ce
i
nvolved
.
Accordingly,
the fact that Nancy
,
at all relevant
times, remained a police officer
,
caused no prejudice
to the accused. The accused included Nancy in whatever
he
was
talking
about.
23.
It
also
has to
be
kept in
m
i
nd
that the confession
the accused made on 23 and
24 June 2019
was mainly addressed to Cynthia, who
,
purposefull
y
,
in order to
convince her
parents
of
the accuse
d
'
s
confession
,
recorded
it
secretly on her
cell
phone
.
Neither
Nancy
,
nor
anybody
else
was
aware
of
the
recording.
If the
confession
was
i
ndeed
addressed
to
Nancy
,
one
could
have expected
her to
either
record it herself or
make notes about it. Only after being made aware that
Cynthia had
recorded the conversatio
n
,
did Nancy
i
nform
her supe
r
i
or
officer
.
I
t
is remarkable that Nancy made her w
i
tness
statement, implicating the accused
,
only
after
the
accused
'
s
arrest.
24.
I
n
respect of Nancy
being present when the accused made the confessio
n
,
the
classic
case
of
R
v
Blyth
1940 AD
355
,
concerning
similar
circumstanc
e
,
is
comparable
.
In
that
matter
a
confession
addressed to
a
police
officer
was
intercepted
and
read by a
police constable. The confession
was
nevertheless
admitted in
evidence
because it
was
intended
to
be
read
by
the
officer
.
25.
I
t
follows that the defenc
e
'
s
contention that the confession should be disallowed because it
was made
to Nancy
,
had
to be
rejected
.
26.
The State
'
s
case in
respect of
the
circumstantial evidence was therefore
materially
corroborated by
the said
confess
i
ons
to Cynthia in
the early
2000
'
s
,
as well as the
recorded confession on 23 and
24 June 2019
.
The
accused is
conv
i
cted
of
murder
as charged.
A
J BAM
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
:22 FEBRUARY TO 03 MARCH 2021
DATE
OF SENTENCE
:03 MARCH 2021
DATE
OF WRITTEN REASONS FOR
JUDGMENT
:15 MARCH 2021
APPEARANCES:
For
The State:
Advocate
SD Ngobeni
For
The Accused
Advocate
SF Fisher-Klein