S v M A (082/2017) [2018] ZAGPJHC 695 (19 December 2018)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 695
|

|

S v M A (082/2017) [2018] ZAGPJHC 695 (19 December 2018)

Links to summary

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NUMBER: 082/2017
DPP
REF: JPV 052/2017
In the matter between:
THE STATE
and
M
A                                                                                                                       ACCUSED
J U D G M E N T
MATSHITSE
AJ
INTRODUCTION
[1]. The state alleges that Mr M A,
being accused before court, and here in after referred to as
accused, and Miss N A, the
wife, were married to each other.
[2]. State farther alleges that during
the subsistence of the marriage between the accused and his wife,
accused had assaulted his
wife. On the evening of the 13th March 2015
accused and his wife were at their residence and accused assaulted
her and thereafter
he reported her missing.
[3]. Upon investigations at their
residence, Ms N As blood traces where found in one of the rooms and
also on her tracksuit
pants, pillowcase and also some screams were,
heard by their neighbours, coming from their residence
allegedly during the
time accused was assaulting her. As a
result, the state alleges that accused killed N A and thereafter
disposed of or hide
her body and since then she has been missing up
to date.
[4]. Therefore, the state preferred
the charges of Murder read with the provisions of section 51(1) and
(2) of Act 105 of 1997
and defeating or obstructing the course of
Justice against the accused.
[5]. The Court is dealing with
the case of what is commonly known as No-body that is the body of Ms
N A is missing up to date
and cannot and be accounted.
[6].
A
no-body
case
is difficult to prove, as the first burden is to prove that she is
dead, not just missing, thereafter one has to prove—without
a
body for evidence—that she was murdered
and in these circumstances the prosecution is to rely on other kinds
of evidence, usually circumstantial evidence.
[7]. Murder consist of the unlawful
and intentional killing of a human being (another person). The best
way to prove a killing is
with a dead body without the body that is
always a chance the victim could turn up somewhere alive. In deciding
the No-body cases
most evidence of the death of the missing person
can be found in one or more of the three categories of forensic
evidence, like
(1) blood found or (2) any confession or statement
made to a friend who later tells on the accused (snitches), or (3) a
confession
made in accordance with the law and any other enough
further evidence that the prosecution may have managed to present
before court.
[8]. No-body murder cases are unique.
Unique legally. Unique factually. Unique in their effect on the
victim’s family,
friends, and loved ones.  it is this
uniqueness that poses a significant challenge for police and
prosecution (investigating
these cases) more difficult for the
Presiding officer since he has to decide the case, if there is no
direct evidence, because
only evidence available will be
circumstantial evidence. The victim’s body remains the single
most important piece of evidence
in any murder case.  Thus, even
with the advance of forensic, no-body cases remain incredibly rare.
Consider the amount of
useful information a body provides. It can
reveal the cause of death. Was the victim shot, stabbed, strangled or
poisoned?
[9]. Today forensic pathologist can
determine the length of a knife as well as the width and shape of its
blade the marks left behind
on several flesh and cut bone.  Of
course, of the best forensic clues, body fluids such as blood and
semen used to conduct
DNA of test, are not available when the
body is gone. Evidence of bite marks, blunt force trauma, and even
fingerprints are
simply not available when a body is permanently
disposed off.
[10]. No- body, however, often
means no crime scene, and no crime scene means no tracking dog or
crime scene reconstruction
or search for trace of evidence.
Thus, a murderer who can successfully disposed of a body is like
a sprinter who starts
a 100-meter race on the 20 m ahead of others;
he gets a tremendous head start that can be almost insurmountable.
Since the advantages
of disposing of the best evidence of one's crime
are so great, the list of ways murderers has disposed of their
victim’s is
astonishing for its creativity. See the book
of “No-Body Homicide Cases: A Practical Guide to Investigating,
Prosecuting
and Winning the Victim is Missing was published in
November 2014. By Thomas A (Tad) Do Biase "No Body" Guy”
THE CHARGES
[11]. Mr M A (Accused) is charged
with: -
11.1 First count of murder, read with
section 51(1) and (2) of Act 105 of 1997 in that upon or about the 13
March 2015 and at or
near house number […] A. Court, S.
Street, Chrisville, in the district of Johannesburg Central, accused
did unlawfully and
intentionally kill N A, an adult female person
11.2 Second count defeating or
obstructing the administration of Justice in that or about the date
and at near place mentioned in
count 1, the accused unlawfully and
with intent to defeat the course of justice hide the body of his wife
N A which defeated or
obstructed the administration of justice.
11.3 Adv M T Ntlakaza appeared for the
DPP and Ms L Qoqo appeared for Mr A. Mr A pleaded not guilty to both
counts. He exercised
his right to remain silent and gave no plea
explanation.
ADMISSIONS
[12] No admissions where made on
behalf of the accused.
ISSUES IN DISPUTE
[13]. The sole issue for determination
by this court is did accused kill his wife, Ms N A (hereinafter
referred to as N) and disposed
off her body or will his wife one day
turn up, that is, return from wherever she is residing. It is noted
She has been missing
from 13 March 2015 to date
[14]. The only evidence that is before
court is circumstantial evidence.
[15]. There is an overwhelming
evidence that N is missing and probably dead but not much beyond
that.  What was she like? What
did she like to do? What was her
relationship with her family, more so her daughter, she had left
behind, could she had stayed
away from her up to date? What was her
relationship between herself and the accused, how was their life
together?
[16].
There is often so much focus on the accused and who the witnesses
are, what and how they will testify on the stand, that
the
victim becomes uninvited guest to a party, not much is said about
her/him, whereas she/he is the main guest of honour, the
person why
we are here in the first place.
[17]. In this case however the Court
knew it was going to have to know more about N, if the
State is going to prove she
was indeed dead, it needs to show
what she was like when she was living.
[18]. A body can potentially tell you.
A skilled medical Examiner and not all are skilled, can measure
the spread of powder
deposits left on the skin (shoot and staple) to
determine the distance between the barrel of a gun and the victim's
body. Recovering
a bullet or shell casing means a ballistic expert
can identify not only the calibre of the weapon used but the exact
weapon used
if a gun is also recovered. Poisoning can be detected
through advance toxicology tests. Was the victim, at any stage
strangled?
If so, contusions may appear on the neck. Minute
bleeding in the eyelids, called petechial haemorrhaging, may be
present.
[19]. Killers have thrown bodies out
of aeroplanes into the sea, pushed them off ships into the sea, and
dumped them into canals.
They have buried bodies deep in the
woods, thrown them into landfills, and dump them on the ground where
they are left to
rot.  Certain perpetrators have burned bodies
in furnaces, in the victims on homes and or buried them in their own
homes.
They have sawed bodies apart, rip them apart with chain saws,
ripped them apart with woodchoppers, and feed them to animals. Some

perpetrators in order to eliminate their victims uses sulphuric acid,
while the others may boil their victims in sausage plant.
Dumpsters,
and large bodies of water are perennial resting places for victims.
THE EVIDENCE FOR THE STATE
[20]. The first witness to be called
on behalf of the State was
Sergeant Wiseman Suta Nkuna
who
testified that he has 10 years’ experience as a police officer
of which 8 years he was attached to Local Crime Record
Centre (LCRC)
he is currently, based at Sandton. Previously he was based at
Johannesburg LCRC. He had done some training among
trainings that he
had attended to was training on blood spatter, toxicology lifting of
DNA evidence. On the 18 March 2015, he investigated
the Flat where N
and the accused were residing from which he compiled Exhibit “A”,
photo album. Inside the flat he
found, amongst others, blood on the
floor from an empty room. This blood shows that something was moved
he lifted blood samples
by using swabs. Photographs 8, 9, 10, 11 and
13 indeed resemble blood which was moved on the floor as opposed to
droplets. He inserted
them in a unique forensic bag 14DCA5191 and
thereafter put them inside a sealed evidence bag with serial number
PA4001915598.
[21]. Blood droplets were also found
on two pillows (cases) which were also taken in as exhibit. These are
reflected in photographs
18, 19, 20, 21, 22 and 23. He then inserted
both pillow case into two separate forensic bags with serial numbers
PA 4000447610I
and PA4000447609Q respectively.
[22]. Blood was also found on a pair
of navy-blue track suite pants which were on top of ironing board.
Photographs 24, 25, 26,
27, and 28 indeed reflect those pair of
pants. He had inserted them inside forensic bag PA4000447612K
thereafter he took them back
to his office, wherein he then drafted a
memo, covering minute, to send them to Forensic Laboratories at
Pretoria. (FSL). The investigating
officer, Constable Kubayi, then
took them to FSL.
[23]. He acknowledged that during the
time he was typing the covering minute he made the mistake of typing
a wrong forensic bag
number PA 400 191 8998 instate of the
correct one being PA 400 191 5598, however the swabs that were
lifted from the
crime scene where never tempered with. All the
exhibit that he had lifted from accused flat where inserted into a
big forensic
evidence bag with serial number PA 3000756814.
[24]. During his cross-examination the
defence concentrated more on the typographical error on the bag. It
was further put to him
that the Forensic bag that was opened at the
FSL was not the bag wherein he had lifted the evidence from accused
Flat. Of which
he replied that should the evidence have been tempered
with the FSL would not have opened it or even look at, but simply
send it
back without any further attention.
[25]. The State called
Doctor
Sibongile Thandeka Nobengu Nhlabath
i to testify, she testified
that she has obtained her degree of MBCHB at University of Natal in
1986, she also has a Diploma on
HIV which she also obtained at
University of Natal in 2013, she is a sexual care Practitioner, she
is currently working for the
Department of Health placed at Hilbrow
clinic. She has been working at the crisis Centre since 2016. As a
Doctor she has been taking
DNA samples from patients.
[26]. On the 05 May 2015 she saw a
minor child by the name of Z wherein she took a sample in the form of
buccal (saliva) swap from
her. Same was sealed inside a crime kid 11
DBAB 0159 and it was handed over to Constable Kubhayi. Also, on the
01 September 2015
at 11hrs 25 she saw M A and she took saliva
specimen (buccal swap) from him which was also sealed inside a crime
kit 11 DBAB 0160
and was given to Constable Tshundsuka Kubhayi.
[27]. The State called a Forensic
Analyst being
Ms Trishen Naidoo
who testified that she is a
police officer with 12 years’ experience and currently holding
a rank of Warrant officer, and
she has since 2008 been stationed at
FSL, in the Biology Department. She has obtained a B.SC degree in
Genetics and Microbiology,
she has also attended in house trainings,
she is a forensic analyst and reporting officer.
[28]. The exhibits that she received
from their Administration office was not tempered with. She explained
that DNA will always
remain constant whether it is in the semen and
or blood. DNA is unique to each and every person except on the
identical twins.
[29]. The DNA which was found on the
two floor swabs [blood], stain 3 [blood] in the pillowcase, and on
the pair of pants [blood]
matches that the donor of the reference
sample of A N. The donor was N A who is the daughter of N. Since they
did not have the
reference sample of the victim, they used the
reference sample that they obtained from the daughter.
[30]. During cross examination she
testified that the blood on the pants were found around the pocket
area, right front thigh and
also towards the foot, at an angle of the
foot.  At the back side it was found bellow the buttocks, left
below the knee. They
look like they were smeared not spots.
[31]. Blood was found on both sides of
the legs. She testified that if a lady was menstruating and she had
an overflow you will
definitely had to find blood on the crouch
whereas in this case it was not. On the pillow she found spots and
they were on the
left-hand side. It was put to her that N had a
problem of bleeding heavily.
[32]. The other State witness called
was
Warrant Officer
Surprise Mnisi
who testified that:
he is a member of the South African Police services stationed at FSL,
Pretoria, Acardia, as a forensic analyst,
he has B.SC (Biology
Technology) which he obtained in 2013 at Tshwane University of
Technology. He opened the exhibit which contained
a pillow case which
had blood on it and by the time he opened the said exhibit it was not
tempered with. Should he had discovered
that it was tempered he could
have returned it without doing any analysis on it. The blood which
was found on one of the pillowcases
had spots and droplets.  The
blood stain found matched the reference sample of the Accused.
[33]. During his cross examination he
confirmed that it was not possible to determine whether the blood
found on the two pillowcases
was knew or old.
[34]. There is also no doubt that
blood from a pair of track suite pants belonged to N. The Accused’s
explanation of this
blood differs. The court will point out those
different explanations below:  There is also no doubt that the
blood from the
pillow (cases) belonged to N and the Accused.
[35]. It was put to the Forensic
Analyst Trishen Naidoo that the blood on the pair of pants could be
menstrual blood. She responded
that menstrual blood could have been
found on the crouch area. The blood on the pair of pants was on the
front, left and right.
There was also blood at the bottom of the
pants and the pocket area.
[36]. During the court’s
questions, the analyst explained that blood was also below the
buttock’s region. On both left
and right. It was also on the
right leg ankle just below the knee. The blood appeared to be smeared
and not in spots on both sides
of the pants. There was no blood on
the crouch area where menstrual blood would be found.
[37]. The next State witness was
Ms
T S
who testified that: She was once in a love relationship with
accused and out of this relationship they have a child, a boy, who
is
currently 03-years-old. On 15 March 2015 between 07:00 and 07:30 the
Accused called her on her cell phone. He wanted to borrow
her car (a
red Renault) because his daughter (K) and her grandfather (G L) were
involved in car accident. They were admitted at
Lenmed Hospital in
Lenasia. He needed a car in order to go and see if his daughter was
okay.
[38]. The Accused arrived at her house
at about 07:50. She gave her car keys to the Accused. He left with
the car. He returned at
about 08:30 and 08:40. The Accused took about
40 minutes to and from Hospital.
[39]. She asked the accused how was
his daughter. He said she was fine, it was just the grandfather (G L)
who needed to remain in
hospital. The accused left on foot.
[40]. On the 15 March 2015, the
accused once again called her. The accused was at the police station
with N’s family because
N was missing and he was assisting the
family, since N was his ex-wife. The Accused told her that should
anyone asked her, if he
had borrowed her vehicle, she should not tell
him/her that she did. She then asked why should she lie for him, if
he really went
to the hospital he had nothing to lie about, of which
accused responded by saying that he does not want her to get into
trouble
and she replied by saying she is not going to lie to anyone
she is going to tell the truth.
[41]. On the 20 March 2015 the police
then visited her. They subsequently questioned her about her car. She
told the police that
the Accused had borrowed her vehicle. They did
some investigations on it but she was never informed of the outcome
of their investigations
[42]. During cross-examination it was
put to her, among others that, accused arrived at her house at around
08h05 and that he had
informed her that at the Clinic, he could not
find anyone at there. She responded that the Accused had stated that
K was fine,
only her grandfather was still in hospital.
[43]. She further testified that the
distance between her house and Lenmed Clinic was about 7 to 8 km and
it was put that accused
had said that it took him about 20 minutes to
go to the clinic, she further testified that the distance between her
house and accused
house could be about 20km.
[44]. She had informed the police that
traces of blood that was in the boot of the vehicle was that of meat.
The first time they
came with a dog but the forensic people never
came.
[45]. She had also on the 14 March
2015 borrowed accused her motor vehicle to go to his place at
Chrysville and to visit his sister
who was also residing around
Chrysville.
[46]. The witness was excused however
she was recalled at the request of the Accused. She was further
cross-examined to the effect
that the accused did not deny that he
told her not to tell anybody about the car. The Accused did so to
protect her as many people
were calling. she confirmed that the
accused said he did not want her to get into trouble and that people
started calling her,
and she did get some calls on Friday following
the day she had borrowed accused her motor vehicle.
[47]. The next State witness was
Mr
G L
who testified that: He is the grandfather of K. The Accused
is the father of the. During March 2015, he and her granddaughter
were
never involved in an accident. He was never admitted at any
hospital.
[48]. During cross-examination, this
witness was asked if he knew Darren Anni. He confirmed knowing this
person as his other son-in-law.
It was put to him that Darren had
psychological problems due to drugs. The accused stated that Darren
called him to inform him
that the witness and his granddaughter were
involved in a car accident. It was further put to this witness that
on Sunday his phone
was off of which he refuted that his phone was
off of Sundays.
[49]. The next State witness was
Ms
Majory Oulden
who testified that: On the 15 March 2015 she was at
Booysens police station. She had accompanied her sister there, they
then meet
with 02 females and 01 male who was light in complexion.
One of those ladies where known to her sister and her sister spoke to
that lady who was known to her, her sister asks why they were at the
Police Station and she was informed that their sister was missing.

She then had a conversation with one of the two females and she
showed her a picture and she said that lady, in the picture, looks

like her neighbour. Unfortunately, she was not the lady whom they
were looking for. She denied ever telling them that she had seen
the
said lady who was in the picture at Eldorado. That was the last time
that she had spoken to them.
[50]. She was cross-examined wherein
it was put to her that she was not telling the truth since she had
informed that family, that
she met at the police station, that she
had seen that lady who was in the picture at Eldorado location and he
was in the company
of another male person and they were consuming
alcohol, of which, she vehemently denied having seen that person who
was on the
picture, N, at Eldorado Location. She stated that she did
not even know who N was.
[51]. She was cross examined on the
contents of her statement which she had made before a police officer.
It was put to her that
she changed her statement after she told the
police that she saw the missing person. She respondent that she did
not change her
statement. She insisted that when she read the
statement before she testified, she had brought it to the attention
of the State
that the contents contained therein where not altogether
truthful. She was adamant that she did not know the missing person in
the picture and had never taken the accused and the two ladies at
Eldorado place/ location.
[52]. It was put to her that she was
shown picture with the full face of that person, whom she had said
she had seen at Eldorado,
of which she denied ever saying that. She
was only shown a picture which was not clear. She denied that she
hates the accused and
further she denied that she was forced by the
community to change her story and then implicate accused.  She
testified that
accused was unease at the police station he was doing
the up and down and also shaking, not being able to stand in one spot
for
a minute.
[53]. The State further called
Ms
Cynthia Crouse
to testify of which she testified that she is a
neighbour of accused and N. She resides at […] A. Court.
In the evening
at around 20h00 on the 13
th
of March 2015,
they were seated outside in the garden at the back. She was seated
about 5 meters from the accused flat. She then
heard N shouting as if
she was being beaten. The Accused and N were fighting. She called the
police. The police took the Accused
away, but the accused shortly
returned. She never saw N again.
[54]. During her cross-examination,
she admitted that she did sign a petition from the community wherein
they were against accused
being granted bail. She denied that she
assumed that accused and N were fighting on that night, she was
adamant that they were
fighting as always. One could clearly hear
that they were fighting. Accused denied that any police came to take
him away. She insisted
that police were called, like they previously
did, they went away with accused but he came back later. It was put
to her that the
Accused still believes that N was still alive. The
Accused conceded that they would have a fight and the family of N
knows about
it, but there was no fight on 13 March 2015.
[55]. It was put to the witness that
the community in the flat were ganging against him. Of which the
witness testified that they
did not it was just that they were not
happy the way accused was fighting N.
[56]. It was put to her that yes
accused and N will sometimes fight and the family was also aware of
that it was further put to
her that the screaming had nothing to do
with the fight. They were talking and N will normally speak in a loud
voice. Witness was
adamant that it was a fight, one could hear it.
[57]. It was also put to her if she
was aware that about 2 to 3 years back N had stabbed accused with a
knife and he had to be hospitalised.
Also, that at one stage N did
disappear and later came back.  She testified further that
accused had threatened her mother
that he would rape her and shot her
daughter.
[58]. It was also put to her that the
family of N wanted him to go forever that is why they are fighting so
much.  She was
aware that N did drink alcohol. During her
re-examination she further testified that after they had fought one
could see bruises
on N on her body and hands. Accused and N used to
fight at least twice a week. Accused denied that they used to fight
at least
twice a week.
[59]. The State further called
Ms
Esme Patricia Hogarth
to come and testify, she testified that She
is a next-door neighbour of the Accused and N. At about 21:00 on 13
March 2015, she
was sitting on her lounge watching television. Her
lounge wall separates the bedroom of number […] A. Court where
the Accused
and N reside. Her couch is standing against that wall.
[60]. She heard banging on the wall
three times. N was screaming: (“
My kop”, “My
kop”
)
my head my head
.
She opened
her gate to look what was happening. The other neighbours were out
already outside and they had called the police. The
police took the
accused away, but let him come back. In the Flat there was the
accused and N only. She was sure it was N who screamed
because she
went to the balcony and through the kitchen did see it was her.
[61]. On the 14
th
of March
2015 she woke up at around 05h10. She made herself a cup of tea. She
opened the curtains and went to sit down. Her flat
is on the ground
floor. That is when she saw accused standing in front of the balcony
and he was in the company of someone, this
person was wearing a gown
which had a hoody on and she could not recognise this person. Accused
and this person spoke and later
they walked away. She does not know
what happened thereafter.  She never saw N again.
[62] In cross-examination she was
confronted with her statement that she had made at the police, she
said the police did not read
it back to her. It was put to her that
she stated in her statement that she saw N. She responded that she
did not see her. She
stated that she never said it was N. She could
not see that person’s face. She insisted that she never told
the police that
she saw N on that morning and that she was wearing a
blue gown. She told the police that she saw a person wearing that
gown with
the hoody over the head and did not see his/ her face.
[63]. She further testified that
accused and N were shouting and screaming to each other and also
accused was insulting N. She did
not put same on the statement as she
thought it was not necessary. She went to sleep at around 09h30 and
the shouting was still
going on. She further testified that they
accused and N used to fight maybe once or twice a week, and they
would push each other
against the wall and the cupboards. In the
mornings accused used to take N to the taxi.
[64]. The other State witness called
was
Ms Elizabeth Nomalizo Sonti
who testified that: She is a
store administrator at Woolworths Market Street, Johannesburg. On 14
March 2015, she was on duty. At
about 09:00 she received a landline
call from a person who introduced himself as N’s husband. This
person said that N’s
bus left her, he is accompanying her to
the taxis.
[65]. N never came to work. She
reported the message to Phindile Ludidi who was the manager. The
following week on Tuesday or Wednesday
the same man called again
inquiring if N had arrived at work. She responded that she never came
to work since the last Saturday.
[66]. During cross-examination it was
put to her that the Accused called at 08h30 and not at 09h00 since
Woolworths was very strict
when it comes to late coming. The witness
stated that she received the call at 09h00. She explained that the
normal working hours
during the week between 09h00 and 18h00 and on
Saturdays the shop opens at 08h00 in the morning, however depending
on what shifts
an employee is expected to start at 08h00 or 09h00.
[67]. The next State witness called
was
Ms Phindile Ludidi
who testified that: She is the manager
at Woolworths Market Street here in Johannesburg. On the 20 January
2015, she issued the
accused with a banning order being Exhibit “M”.
On that day she found N hiding behind the rails which they use to
hang
clothes and N approached her. They then went to her office
wherein she closed her door and N informed her that there was someone

who wanted to assault her. The Accused was following her. She called
the Accused. She informed the Accused that fighting is not
allowed
inside Woolworths if they wanted to fight, they must go outside, then
accused apologised.  She then issued the banning
order that is
exhibit “M”, she explained that it says he must not enter
Woolworths store at all even if it is only
to pay an account. She
then give the original to accused and she retained a copy thereof.
[68]. On 14 March 2015, Elizabeth
Nomalizo Sonti reported to her that she received a call from the
Accused regarding N’s late
coming. According to her, when N is
delayed, she would personally call.
[69]. During cross-examination, she
explained that she only knew accused name however during the time she
was completing exhibit
M accused give her his surname as well as his
date of birth.  Accused denied the fight with N at Woolworths
and that his date
of birth is wrong. She stated that it was the
Accused who gave her his surname and date as well as his address, as
they appear
on the exhibit M. She confirmed that there are cameras
inside the shop.  However, the video footage is only kept for a
week
only the cash office footages will sometimes be kept long. If
the footage is requested during that week it shall be downloaded on
a
USB.
[70]. It was put to her that during
this date N was hospitalised for a period of about 3 weeks. She
replied that she was aware that
at one stage yes, she was
hospitalised, but cannot precisely say when was this. It was further
put to her that during this time
it was when accused was frequenting
Woolworths bringing in N’s medical certificates and they were
handed over to Mary at
the reception.  She replied that it was
the sister who would bring the Doctors note.  From that date on
she used to see
accused standing at the street corner, that did not
bother her as that did not concern her.
[71]
. Ms Alinah Liau
came and
testify on behalf the State to the effect that: While she was at
Mafikeng, she received a call from the Accused asking
her if she saw
his wife. The Accused asked her if she was working at Woolworths. She
confirmed, but she was on leave at the time.
She told the Accused why
was he not asking N’s friends V and R. The Accused said: he
heard that N left in a Taxi occupied
by 04 (four) men to Soweto”
.
She responded that she was not in Soweto.
[72]. During cross-examination her
testimony it was not denied that accused did call her, since accused
was shocked and was phoning
around trying to find where was N. It was
further put to her accused never said N left in the company of 4 men
to Soweto she heard
him wrong. He actually said N was going to work.
The witness was adamant that Accused stated that N was going to
Soweto and accused
was insisting should she see N at Soweto she
should call him.
[73]. The State further called
Ms V
D
to testify. She testified that she worked with N at Woolworths.
On 14 March 2015 at about 21:00 she received a call from the Accused.

He was asking whether N was with her. She responded by asking the
Accused how can N be with her since he called at work alleging
that
she missed her bus.
[74]. She asked the Accused why he
does not call N. The Accused said: he has her phone since she left it
in order for him to put
air time on it and his was being repaired.
[75]. During her cross examination it
was not denied that accused called her. However, regarding his phone,
he was embarrassed to
have informed her that his was pawned for
money. She testified further that she did not know where E reside or
even his number
and whether E and N had a love relationship or not or
even if they were very close.
[76]. The State further called
Ms J
A
to come and testify and she testified that: She is the
sister-in-law of accused and N is her sister. On the 15 March 2015
she,
accused and C, her elder sister, went to Booysens police station
to report a missing person being, N since she did not come back
home
on Saturday. A lady police officer realised that the Accused was
intoxicated and told them to come the next day. She met a
lady
(Marjory) at the police station who wanted to know who was this
missing person. She had a phone. She showed her photo of N
when they
were walking at the zoo. The photo was taken from the right-hand
side. Marjory responded that this person I have seen
at Eldorado
Park. She is not sure if really Marjory did know N. At the police
station accused was in possession of N cell phone.
[77]. On Saturday accused came to
their house coming to inquire if N had returned back from work he
then left but retuned later
on at about 07:30 he had brought along a
bowl of chicken livers indicating that they had made them the
previous night. He said
nobody was going to eat them at his place
since no one was there. The last time that she saw N was on Friday
the 13 March 2015
up to date she has not seen her.
[78]. During cross-examination the
witness confirmed that accused and N did not have a fridge and
anything that needed refrigeration
will be brought at accused
mother-in-law to be put in the fridge. It was put to the witness that
accused brought the uncooked chicken
livers, however the witness
responded that it was already cooked as she is the one who took them
from accused at the time they
were watching TV and they did ate them
the same night.
[79]. She confirmed having showed the
photo to Marjory. However, the said photo was on her Iphone, of which
she has since lost it.
Marjory had said the short hair on this person
looks like someone that she had seen at Eldorato Park, in actual fact
this person
looks like her neighbour. She was confronted about this
evidence, that she is trying to cover the case. She denied that was
not
what she was trying to do.
[80]. It was put to her that she drove
accused to his place to go and collect a picture of N, she confirmed
that and it was the
same photo was shown to Marjory, of which the
witness denied that it was shown to her (Marjory). The photo was
given to the lady
police officer who still refused to open a case of
missing person saying accused was still intoxicated.
[81]. She testified that the Accused
had scratches on his face, head and neck and also the police officer
(lady) did ask him about
them and accused responded that he was
working at a house and the ceiling fell on him.
[82]. It was also put to her that N
disappeared for 03 (three) months previously without the Accused
knowing where she was. She
said that was not for that long N was
running away from accused since accused was abusive to her and it was
only for a month. However,
during that period, they were in contact
with each other and accused knew where N was residing, she was living
with their Aunt
at Jeppestown, it was not like she did not want him
to know where she was or hiding from him.
[83]. The Flat was owned by N. It was
also put to her that N had a serious medical problem. She responded
that she did not know
that. She confirmed that during February 2015
she was hospitalised. Since she was complaining of about her stomach.
[84] During the court’s
questions she described the relationship between N and the Accused as
very abusive. The Accused was
assaulting her at least once a week. N
will arrive at their house with some bruises but will try to hide
them from them but ultimately
will tell what happened, that accused
assaulted her.  N has a child who is now 08 years old with the
Accused. N was very close
to the child. As every morning she would
pass at her mother’s house to take her to school and when she
returns from work
will pass by to see her again. Every weekend the
daughter will go and visit her at her house.
[85]. She was also referred to her
statement that she had made to the police more so at paragraph 11
thereof, where in among others
she had stated that the lady (Marjory)
recognised her sister at Eldorado.
[86].
The next State witness was
Mrs
D A
who testified
that: The Accused is her son-in-law. She is the mother of N. The Flat
[…] A Court belonged to N. She was sharing
it with accused.
The accused and N had a child Z who was staying with her. The Accused
started to abuse her daughter during 2011
after the passing of N’s
father. He was assaulting her. She always had bruises under her eyes.
She loved accused like her
son, after the passing of accused mother
accused came to her and ask her to be his mother since he does not
have any mother any
more.
[87]. N loved her child very much. N
was working for the child. Every morning before going to work N would
come at her house and
assist her child to be ready for school. When
she comes from work, N would come to see the child. If she would be
late, N would
contact her.
[88]. On 13 March 2015, N came from
work to see the child. She told her that she sold her shares at
Woolworths. Accused was present.
She told the Accused that she was
tired of him abusing N.  N took out R300.00. She told her to buy
a comforter at China town.
She took back R100.00 and gave her
R200.00. N would have come from work to fetch her comforter. It has
been 3 (three) years since
she last saw N.
[89]. During cross-examination it was
put to her that N was an aggressive person. It was put to her that N
once stabbed the accused
on his mouth when he did not have any
weapon. She did not know that. She went on to testify that she would
time and again see bruises
on N and she will ask her what happened.
At one stage accused had stabbed N on her left-hand side near her
breast. It was too much
to have seen how accused had abused her
child.  It was also put to her that she and her family knows
that N is still alive.
She denied that her family knows her
whereabouts.
[90]. She responded that N will not
leave her 05-year-old child and not even contact her child something
she used to do every day.
The Council was about to move other people
in the Flat. She explained to Council that was Z’s Flat.
N got a title deed
for the Flat.  She remembered N had a stomach
problem and she was once hospitalised for that. She also testified
that at one
stage N had to go and stay with her Aunt at Jeppestown
for a period of about one month not three months.
[91]. The other State witness was
Sergeant Victoria Maluleke
who testified that: She is a police
officer at Booysens police station. She has 15 years’
experience as a police officer.
On 15 March 2015 she was on duty when
a male and 02 female coloured persons arrived at the station.
[92]. The Accused was reported to be
the husband of the missing person. It was reported that the missing
person had left to town
on the 14
th
of March 2015 to work.
[93]. She asked the Accused if he
phoned the missing person. He said his wife does not have a cell
phone. The Accused was smelling
of alcohol. The Accused was the last
person to have seen the missing person. She was unable to take a
statement from him as the
accused was smelling of alcohol.
[94]. She noticed some scratches on
the accused’s head. They were fresh. The scratches were from
centre of the head on both
sides. She enquired whether he fought with
his wife. The accused denied. He said he fell from a ceiling where he
was doing a piece
job.
[95]. They agreed that they will make
enquiries at work place and come back the following day to update
about her progress.
[96]. During cross-examination,
Accused disputed that he said he fell from the ceiling. It was put to
the Sergeant that the Accused
said that the ceiling fell on him. The
Sergeant was adamant that the Accused said he fell from the ceiling.
It was also put her
that it was a small scratch. She responded that
it was like fingernails. They were scratch marks.
[97]. It was also put to her that
there was a conversation about the person being seen. She responded
:
that she did not hear them as they were speaking amongst
themselves.
[98]. The next State witness called
was
Constable Tsundzuka Kubhayi
who testified that: She is the
investigating officer of this case. As part of her investigations,
she discovered that N had applied
for a protection order against the
accused in respect of assaults she suffered. An interim protection
order was granted and it
was dated 23 January 2012 and was handed to
court as Exhibit “S”
.
She is the one who collected
the exhibits, sealed, from Sgt Nkuna, and delivered them at FSL in
Pretoria and they were not tempered
at all.
[99]. She confirmed that there was a
diligent search in a wide area for the body of N to no avail. Dogs
were also used.
[100].  During her cross
examination she confirmed that she is the one who took the Statement
that was made by Marjory and
she wrote what the witness was telling
her, like what was said at paragraphs 4 and 5 of Exhibit “F”.
It was put to
him both phones that where pawned belonged to accused.
Confirmed that the interim order was never confirmed. Further that
during
the bail application of accused the community of Bellvista and
Chrisville signed a petition opposing the granting of bail to
accused.
She further confirmed that a search of the body of N was
conducted around Booysens area, they had used Helicopters, sniffer
dogs
and they failed to can find anything.
[101].  The other State witness
was
Ms Bridget Nguruve
who testified that: She was employed at
Supreme Buy and Sell shop, which its nature of business was to pawn
or buy and/or sell
goods.  When a customer comes to pawn his/her
good they will make a copy of his/her identity document and
thereafter will
be given a slip as prove that he/she had pawned a
his/her goods.  When he comes back he is supposed to bring that
slip so
that he/she can get his/her goods back, also after paying the
amount they would have stipulated in the receipt slip.
[102].  The Accused pawned a
Samsung cell phone on 12 March 2015 for R150,00 and he was supposed
to come back and pay an amount
of R180.00. On 19 March 2015 accused
again pawned a Nokia C3 cell phone for an amount R100,00 and he was
supposed to have paid
back an amount of R120,00 at the time he was
collecting them. These phones were eventually taken by the police
.
Exhibits “P” and “R” confirm the
transactions, and Exhibit “Q” being the Identity document
of
the accused.
[103].  The last State witness to
be called was
Mr Burn Don Johnso
n who testified that: In 2016,
he met the Accused. The Accused promised to sell a Flat ([…]
A. Court) to him for an amount
of R6000.00. An affidavit was signed
at Eldorado Park police station dated 11 February 2016. He gave the
Accused R1000.00 as a
deposit. The Accused wanted the balance. After
the deposit was paid, the Accused started to give different stories.
He never eventually
moved into the Flat. He did not get his deposit
back.
[104].  During his cross
examination it was put to him that this was a temporary arrangement,
he was going to reside with the
accused, accused wanted someone to
stay with him since Ns’s family was harassing him. The reason
he could not give him occupation
was that his in-laws had broken into
the flat and had taken occupation. Accused apologised for not
repaying back his R1000,00.
[105].  He further testified that
he was approached by Donavan to come and make a statement, of which
it was put to him the
same Donavan, has taken occupation of his flat
and is doing this to make sure that he does not come back to claim
his flat back.
Donavan is also son-in-law of N’s mother
That was the case for the State
THE DEFENCE CASE
[106].  The defence case
comprised of the evidence of the Accused as well as 02 witnesses.
Their evidence was as follows:
[107]
.  The Accused
testified that: N was his wife. He testified that he last saw N on 14
March 2015. He did not fight with N. They woke up late on
the 14
th
of March 2015. She was preparing to go to work while he was busy
making breakfast. His wife went out to buy cigarette. They left
the
house together. She missed the 07:45 metro bus.
[108].  They walked to Johanna
Street to get a taxi. His wife reminded him not to forget to take
liver to his mother-in law’s
house (D). They do not have a
fridge. N took out a packet of jelly tots sweets so that he could
give them to their daughter Z.
At around 08h30 he bought a taxi to
town. Inside the taxi it was the taxi driver, two women and a man at
the back.
[109].  He went home and took the
liver to his mother in law and gave jelly totts to Z. His mother-in
law asked where was N.
He responded that they missed the bus, she
took a taxi.
[110].  N had reminded him to
phone Woolworths and to ask for Mary-Ann, R was very strict when it
comes to people who comes
late to work, upon calling he did not find
R however he reported to a lady that N missed the bus and she is
going to be late. After
the 14
th
of March 2015, he never
saw his wife again. He never had a fight with his wife, why would he
kill her.
[111].  When the accused was
asked about the blood of his wife which was found on the floor of the
empty room, on the track
suite and in one pillow, he stated that he
knew nothing about that. Regarding his blood which was found on the
other pillow, he
testified that N had stabbed him, on his head, nose
and he has a scar there and she also stabbed him on his mouth. This
happened
about 6 to 12 months back prior to the disappearance of N.
[112].  Regarding the scratches
which were on his head, he testified that that was a small scratch,
which was even far from
his ear. How he got it on the 15 March 2015,
he was in the company of his friend and they went to fit a ceiling at
the back rooms
of one lady who is known to him as Glenda. He was
holding a ceiling, which was about 3 meters long, on one end and his
friend was
holding the other end, and he was climbing on the
scaffolding and he thinks he must have slipped because the ceiling
that they
were holding came and feel on top of him and it only
scratched him little bit (small) on the head.  Upon knocking off
he washed
his face and head and he felt the stinging sensation he was
unable to can see his top of the head (crown) that is where he was
injured. It was not true that he was beating his wife almost every
day.
[113].  He confirmed borrowing Ms
S’s vehicle and what has been put to her during her cross
examination. At the time
that he borrowed Ms S motor vehicle she had
told him that she wanted to go to church and the motor vehicle did
not have enough
petrol. He further testified that since he had to
sell his camp chair and paint for R50,00 in order that he can put
petrol on Ms
S vehicle. He lied to Ms S, by saying that his daughter
was fine but his ex-father-in law had to remain in hospital. The
reason
he lied was afraid that Ms S will be angry with him for
driving from Chrisville to Eldodado Park unnecessarily so.
[114].  During cross-examination
among others he testified that on the night of 13 March 2015, he and
N where happy they even
made love that evening. Since N was using the
blue track suite as pyjamas, she had to take them out, fold them and
put them, originally,
he said in the cupboard, however he later
changed to say on top of the ironing board, which was about 1,5
meters away from the
bed. The said track suite was worn out that is
why it was torn.
[115].  He testified that at one
stage N complained of stomach cramps and was bleeding seriously so,
and they consulted a private
doctor, who did a sonar, and said that
it seemed like N had miscarried. She was booked off sick for three
days however she was
then admitted in hospital on the 27 January
2015. Upon her discharged she was still sick she could not walk
properly.
[116].  When asked again how did
his blood got to the pillow, he testified that about 6 to 12 months
back N stabbed him on
his mouth and also threw bottle glass at him
and she also hit him with it.
[117].  He pawned the cell phones
because they had financial problems, on the 12 March 2015 he pawned
the cell phone because
N did not have a bus-ticket. On the 19 March
2015 he pawned the other cell because he needed money to visit the
hospitals looking
for his wife.
[118].  He also had a protection
order authorised against N. He testified that every marriage had its
problems and during 23
January 2012 when the interim order was made
against him, they were only about 2 years in their marriage. N used
to say that she
will one day leave him and leave their daughter with
her mother and she will never see her again. She used to say that “
It
is better to be an old man’s darling than to be a young man’s
slave”
She will say these while she was consuming alcohol
and she will be in the presence of their neighbours. She said the
same thing
twice in the presences of her mother.
[119].  He was also at pains to
explain why he told T S that
If she is asked, she must not say
that he borrowed her car.
He said he did not want her to be in
trouble. He could not explain what trouble he was referring to.
[120].  He said his neighbours
might have confused the screams of N with singing. N was a loud
person. N abused alcohol and
did not cook for him.
[121].  He denied attacking N at
Woolworths. He denied the issuing of the banning order by Phindile
Ludidi at Woolworths. He
further stated that during the alleged date
that he was given the order in actual fact N was in hospital.
[122].  During the court’s
clarifying questions, he testified further that the injuries he got
over his head, nose and
mouth did not take place at the same time,
they happened in three separate dates.
[123].  Also, when asked about
the issue of the selling of his camp chair and paint, he said he had
to sell them first before
he left Chrisville to Ms S place, she is
resident at Eldorado Park. The money received from selling those
items was used as a taxi
fare money.  Further that Ms S does not
stay far from Lenmed Clinic, and that there are no taxis that comes
from Chrisville
to Lenmed Clinic, but there are taxis from Eldorado
Park to Trade Mall Centre. Trade Mall Centre is adjacent to Lenmed
Clinic,
it is divided by a fence.
[124].  Regarding the N’s
track suite pants, he further testified that the reason that they
were torn was because they
were burned by iron.
[125].  The defence then called
Professor (Dr) Robert Huddle
to testify and he testified that:
He is a doctor by profession. Since 1990 to 31 March 2015 he was
specialist Physician, heading
the Department of Medical, Oncology and
Diabetes while working Chris Hani Baragwanath Hospital.
[126].  During 27 January 2015 to
11 February 2015 when N was admitted as a patient at South Rand
Hospital. He asks for her
hospital records from South Rand Hospital
and they could not find any He did not examine her. He only relied on
the referral letter
and hospital notes being Exhibits “V 1 to
V3”. She had an inflamed liver. He did not know the cause.
Someone
with inflamed liver could easily bleed if the patient has
severe liver inflammation, however the patient, Ms N, it was not
stated
if she had a sever hepatitis-Liver problem. Upon her discharge
from South Rand Hospital she was given a referral letter, Exhibit

“V2” to take along to Chris Hani Baragwanath Hospital for
further investigations or check-up. He did not know if she
was an in
or out patient.
[127].  The only thing that he
could see from the notes Exhibit “V1” upon her discharged
at South Rand hospital,
on the 11 February 2015 was that she was
well. She did not have any severe liver inflammation that is why she
was discharged.
There was no evidence of severe liver
inflammation, although she was supposed to attend to further
examination.
[128].  The last defence witness
called was
Ms Glenda Ramsunda
who testified that: The Accused
had worked at her house about 2 years back he was in the company of
one Hassan and they were fitting
in a ceiling. She cannot remember
which year or even a month or even the date what she knows is it was
Saturday and Sunday, they
started working at her place on Saturday
and finish off on Sunday.  While they were working a ceiling
fell and it feel on
top of accused it cut him just above his ear, she
cannot remember which side was he cut.  It was an open wound.
She
could not remember whether ceiling fell on him or he fell
on the ceiling. She had to clean it with Dettol.
[129].  When asked by the Court
the type of ceiling, she said her ceiling was a chalk board, however,
they were able to re-installed
it. Where the ceiling feel it is still
visible. She only painted it, it is in the main bedroom.
[130] She testified that accused and
Hassan came early in the morning and she had informed them that her
husband had gone to buy
some nails.  And ask them, while still
waiting, if she should make tea for them, accused said no he must
take his wife to
the taxi rank because she was on her way to work.
The Accused left. He said he must take his wife to the Taxi Rank.
Accused then closed his case.
ARGUMENT BY BOTH THE STATE AND
DEFENCE
[131].  Both the State and the
Defence filed their written heads of argument and the court
appreciate them very much.
Both State and the defence addressed the
court on conviction and they each summarised their arguments on
record, the court will
not repeat every submission made on their
written arguments and or during their summations in court save to
state that the court
where necessary will refer to some of the points
raised on their arguments.
[132]. The state submitted that the
case of
S v Nkuna 2012(1) SACR 167 (B)
is more relevant in
this matter:
132.1. There are striking similarities
between this matter and the
Nkuna case
. They are:
132.1.1 The lapse of time since
Frances’s disappearance which was in excess of a year. In this
case more than 03 years have
elapsed since N’s disappearance;
132.1.2 Despite diligent
investigations by the police, no information came through. In this
case Constable Kubhayi explained that
a wide search was done to no
avail.
132.1.3 Frances had a happy family
life. In this case N visited her child every day after work and in
the morning, she was also
helping her child to go to school as D
explained. She had also given her Mother R200.00 to buy a comforter.
D was waiting for her
to pick up her comforter.
132.1.4 Frances had a happy
professional life. N was happy at work and protected by a banning
order.
132.2  Frances had a turbulent
relationship with the accused and had a protection order against him.
In this case, N had a
turbulent relationship with the Accused. She
had an interim protection order.
[133] The Defence had submitted that
the said case of S v Nkuna is not relevant since Mr Nkuna on that
case had failed to testify
or even call any witnesses. Further that
the blood of the deceased was found at boot of his motor vehicle.
133.2.1. I humbly submit that; the
state overlooks the calibre of the evidence which was presented in
Nkuna visa vi the case before
the Honourable Court. In Nkuna case,
the blood found in the boot of the car of the accused was tested and
was found to be that
of the disappeared person. How else can one
explain this? It was reasonable that an inference was that the
accused in that case
was responsible. In this case the car that the
state was used, was tested and no human remains were found.
133.2.2 The blood of the disappeared
person in this case was found in her house. Accused explained why his
blood was also found
on the pillow. The expert said it clearly that,
the blood can be tested even if it’s been lying there for
years, the calling
of the Experts did not help the state in the
determination of the age of the blood drops.
133.2.3 The proven facts anyway are
that, accused got injured when he was working and it can even be that
he bled on that pillow.
All that I’m saying the presence of
blood on that pillow and in the house could have been from any cause.
It’s not
farfetched that N could have been bleeding vaginally
that day. There could have been many inferences. If the tracksuit
pants were
part of the scene, how probable was it that the accused to
hide other clothes and decide to leave exposed, bloody track suit
pants.
133.2.4 The accused in Nkuna, never
got to testify and his credibility was never tested. Also, he never
contested the prima facie
case that was presented by the state. He
chose to remain silent when he actually had a case to answer to. It
was important to come
and answer about the presence of the missing
persons blood in his car. It was strange, but he chose to remain
silent.
133.2.5. In this case accused took the
Court in his confidence and he testified. He stuck to his version and
never contradicted
his evidence. Although the state would like the
Court to believe that there were contradictions between the accused
and his witnesses
there was nothing material that the state could
successfully pin point
[134]. The Court does not agree with
the defence when it submitted that Mr Nkuna did not testify on his
case, He did testify and
his testimony can be found at paragraph 76
to 108 of the judgment.
EVALUATIONS AND FINDINGS
[135].
It is the duty of the State to prove the case against the accused
beyond a reasonable doubt,
a
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found
to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence tendered. In
considering
whether evidence is reliable, the quality of that evidence must of
necessity be evaluated, as must corroborative evidence,
if any.
Evidence, of course, must be evaluated against the onus on any
particular issue or in respect of the case in its entirety.
S
v Trainor
2003 (1)
SACR 35
(SCA) para [9].
[136]. The main issue for
determination in this matter is, is Ms N A (herein after referred to
as N) just missing and one day she
will pitch up or is she alive
somewhere unknown where she does not want to be found either by her
family, more so, the accused,
or has accused killed her and hidden or
destroyed her body
N (“N”) A Is she
Missing has she left on her own?
[137]. Accused had submitted that N
has voluntarily left and she is still alive wherever she is. State
says N did not leave accused
had killed her and hidden her body.
[138]. According to the evidence the
family and neighbour the last time they saw N alive on the 13
March 2015, however
according  to the accused  the
last time he  saw  N was on the 14 March 2015 at 08h30 when
she allegedly boated
a taxi which was going to town and she was going
to work at Woolworths  and up to date none of them have seen N
or they have
not made any contact with her or she has not made any
contact with any of them wherever she may be.
[139]. It was put to the two State
witnesses, J A and D A, by the accused that at one stage N had
disappeared for a period of about
three months without knowing her
whereabouts, however the two witnesses testified that, accused knew
where she was, since she was
communicating and keeping in contact
with him. The only thing is that she was hiding and wanted to stay
away for a while from accused
abusive behaviour. She only stayed away
for a period of one month and during that time she was leaving with
her Aunt at Jeppestown.
[140]. During his testimony accused
also indicated that after N was discharged from hospital, one and
half month back, just before
she disappeared, she was sick and she
couldn’t walk properly.
[141]. It is not in dispute that N
loved her daughter very much, she would go to see her at her mother’s
place, D, every morning
and also when she comes back from work.
[142].
Accused also testified that N used to say to him, especially when she
was under the influence of alcohol, or when she was
seated with their
neighbour drinking alcohol, she would say one day she was going to
leave him and he won’t see her anymore,
she is going to leave
their daughter with her mother, and further he testified that she
used to say that “It is better to
be an old man’s darling
than to be a young man’s slave” and she said this twice
in front of her mother. This
version was never put to any of the
witnesses. It was important to have put this version to the
witnesses, especially, D, in order
to have allowed the court to hear
their reaction to such allegations.
[143].
S v SHAW [2011] ZAKZPHC 32;
AR342/10 (1 AUGUST 2011)
“
Adducing
evidence in chief and cross-examination effectively in cases where
the evidence is entirely circumstantial assumes special
importance.
Testing all reasonable possibilities fully is indispensable not only
for discrediting evidence and for enabling the
witnesses to refute
attacks on their credibility, but also for eliciting for the trier of
fact, not speculation, but explanations
which, if reasonable, would
enable appropriate inferences to be drawn. Failure to examine and
cross-examine effectively may not
only bar a party from later seeking
to draw inferences from facts not attested to or disputing the truth
of a witness’ evidence,
but also impair the ability of the
trier of fact to draw the most reasonable inferences”.
[143].
S v FORTUIN 2008(1) SACR 511
(C) AT [13]–[15]
If a party wishes to lead evidence
to contradict an opposing witness, he or she should first
cross-examine the witness upon the
fact he or she intends to prove in
contradiction, so as to give the witness an opportunity for
explanation. Similarly, if the court
is to be asked to disbelieve a
witness, he or she should be cross-examined upon the matters which it
will be alleged make his or
her evidence unworthy of credit.
In
Small v Smith
1954
(3) SA 434
(SWA) at 438
, Claassen J said:
“
It is grossly unfair and
improper to let a witness's evidence go unchallenged in
cross-examination and afterwards argue that he
must be disbelieved.”
Failure to cross-examine may therefore
prevent a party from later disputing the truth of the witness's
evidence. According to the
rule in
Browne v Dunn
(1894) 6 The Reports 67
a party who calls a witness is entitled
to assume that a witness's testimony has been accepted as correct if
it has not been challenged.
The rule has been consistently followed
by our courts but, as was pointed out in
President of the RSA
and Others v South African Rugby Football Union and Others
2000 (1) SA 1
(CC)
, it is not inflexible. For instance, it has no
application to testimony that is manifestly incredible.
[144].  Accused wants the court
to draw an inference that N has come to make her threats true, that
is, she has left and had
made sure that accused would never see her
again and she has left their daughter with her mother. And a day
before she disappeared,
she had left her shares with her mother.
However according to Exhibit N J statement, she wanted her mother to
keep her shares book
from work up until Monday when she was going to
take it together with additional forms, and it is now clear that she
never managed
to can complete those forms.
[145].  Since this version was
never put to the State witnesses the court will not draw any
inference from this version.
Witnesses Statements contradictory
to their viva voce evidence
[146].  Based on the statements
of two of the State witnesses, being Ms Marjory Oulden, exhibit “F”
and Mrs Esme
Hogarth Exhibit “L” the Defence has
submitted that these two witnesses, had seen N being alive on the 14
March 2015.
Ms Hogarth saw her in the early hours of the morning in
front of their flat, whereas Marjory saw her at Eldorado Park
extension
in the company of another gentleman and they were drinking
alcohol, from there they left together.
[147].  The two witnesses when
they testified, they denied that they have said that they have seen
N, the police officer who
took their statement did not properly
record what they wanted to say
[148].
Let us pause here and look at both Statement exhibits “F”
and “L”  If one reads and compare
what has been
written in paragraphs 4 (first) and second 4 and compare with what
has been written in paragraph 5 of Exhibits “F”
it
is really confusing “
I
also met a family which was reporting a missing person. The family is
unknown to me they showed me a picture of a lady but the
picture
showed only half of the face but
I told the family that
I saw the lady drinking beer (N) at Eldorado Extension one with an
unknown male
”
[149].
The contents of second paragraph 4, from line one it says “
I
told the family which was two sisters with their mother and one male
who is said to be the missing persons husband (M A) that
I saw the
lady at Block PP drinking beer there with a male who is unknown to
me…..it went on and say
”
I did not say anything about seeing the missing person (N) nor
any car what-so-ever because there was no car when I thought it was

her
[150].  Paragraph 5 says “The
lady that I saw was or later on left the flats with male by foot they
had no car. I did
not meet the family at Eldorado or at Booysens
SARS> Neither did my son meet them. That’s the only time
that I meet them.
Ms Marjory when she testified, she
said she did say she saw N, she said she was shown a half picture and
the person who was on that
picture had short hair, and she looked
like her neighbour, not that she saw her (N) at Eldorado.
[151].  The excepts quoted above
from exhibit “F” it is not clear if really Ms Marjory saw
two families, and both
families had a missing person(s) because in
first paragraph 4 , she said to the said family after seeing the half
picture that
she saw that lady at Eldorado Extension. However, on the
second paragraph 4, M A family at the top of the paragraph it is
written
she saw the lady at Block PP
[152]. With regard to Exhibit “L”
Ms Hogarth statement, from line 4 of paragraph 3 it says
(“…
. I look outside I
saw the men who stays next door at no.7 standing outside, looking at
direction of their flat, while I was still
wondering why the man is
standing outside early in the morning I saw “N” coming
out of her flat and she went straight
to her husband and they left. I
did not see the direction they took the lady N was wearing a blue and
white gown with the hoody
on, I could see one side of her face. Since
that day I never saw N)”
When Ms Hoggard testified she denied
saying the above paragraph, she indicated that she was just given the
statement to sign she
did not know what was contained on it.
[153].  According to the accused
testimony, on the morning of the 14 March 2015 he and N woke up late,
he prepared breakfast
while N took a bath, thereafter, he went to
take a bath and N went to the shop to buy a cigarette. N was unable
to can do without
a cigarette even when she had to go to the toilet.
Thereafter they left together to go to the Johanna street to look for
a taxi.
[154].  On accused evidence it is
clear that he never went outside, and they woke up late, N missed her
07h45 bus, which means
as stated at Ms Hogarth statement that at 5 am
she was looking outside and saw accused standing there and N joined
him it is not
truthful.
[155].  It is well known that
police statements are as a matter of common experience not taken with
the degree of care, accuracy
and completeness.
[156].  This was dealt with in
S
v Xaba
1983 (3) SA 717
(A) at 730B-G
.  In cases where
there are contradictions between the statement made by a witness to
the police and subsequent viva voce evidence,
the approach is the
same as dealing with the contradictions between two witnesses.
[157].  In
S v Mafaladiso en
Andere
2003 (1) SACR 583
(SCA) 593E-594H reads as follows
:
“
. . .in neither case is the
aim to prove which of the versions is correct, but to satisfy oneself
that the witness could err, either
because of a defective
recollection or because of dishonesty.  The mere fact that it is
evident that there are self-contradictions
must be approached with
caution by a court.  Firstly, it must be carefully determined
what the witnesses actually meant to
say on each occasion, in order
to determine whether there is an actual contradiction and what is the
precise nature thereof.”
[158].  In Mafaladiso the
approach is that not every error by a witness nor every contradiction
or deviation adversely affects
the credibility of a witness.
Non-material deviations are not necessarily relevant. Furthermore, it
was held that the contradictory
versions must be considered and
evaluated on a holistic basis.
[159].  In addition to weighing
up the previous statement against the viva voce evidence of both
witnesses, the Court considered
their evidence with the necessary
cautionary rules they were credible and satisfactory in all material
ways.  Evaluated on
a holistic basis I am satisfied that both Ms
Marjory and Mrs Hogarth of the events of 15 March 2015 and 14 March
2015 their reliable
and notwithstanding any shortcomings, the court
is satisfied that their evidence is credible in all material
respects.
[160].  Accused also testified
that the family knows where N is, more so they want him out of their
flat. They have put one
of their daughters and her husband in their
flat. Ms D had testified that City Council was planning to repossess
the said flat
as it was standing empty, and she said to them that it
belongs to her grand-daughter Z.  So, they put in one of her
daughters
inside it to look after it.
[161].  The Defence further
submitted that the Investigating officer had testified that a
thorough search was conducted that
is sniffer dogs, helicopters were
used in searching the body of N at manholes, dump area around
Booysens and nothing came out of
it.
[162].  The Defence further
submitted that since the state wants the court to draw an inference
to the fact that accused borrowed
Ms T S motor vehicle on the 15
March 2015 and he must have used it to transport the body of N from
their flat, however the police
did search the said motor vehicle for
any traces of blood by the use of the police dogs and they could not
find any, Defence submitted
further that it was not possible to can
disposed the body of N in that short space of time, since it is was
testified by Ms S that
accused only took the motor vehicle for about
40 minutes.
[163].  As a result, the only
inference that the court should draw is to the effect that N is alive
and hiding somewhere.
[164] The Court take cognisance of the
warning that has been echoed in several decided cases that a
distinction must be drawn between
the drawing of inferences and in
making assumptions when dealing with circumstantial evidence. Like
what was stated in
S v
Cooper
1976
(2) SA 875
(T
)
it was stated that: “When triers
of fact come to deal with circumstantial evidence and inferences to
be drawn there from,
they must be careful to distinguish between
inference and conjecture or speculation.
[165].  There can be no inference
unless there are objective facts from which to infer the other facts
which are sought to
establish.  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 reasonable probability.  But if there are no positive
facts from which the
inference can be made, the method of inference
fails and what is left is mere speculation or conjecture.”
[166].  During accused testimony
it came out that accused not only borrowed Ms S motor vehicle on the
15 March 2015 he also
borrowed it on the 14 March 2015, allegedly he
went to visit her sister who also stays in the same are as that of
accused. The
searches by the police was only conducted few days after
the N was reported missing. Therefore, possibilities are many things
could
have happened in between this 13 March 2015 and the time the
police conducted their search.
[167].  Accused further testified
that the reason he asks Ms S to lie that she must not tell anyone
that she borrowed him her
motor vehicle was that the family of N more
particularly the community where starting to harass her, it was more
to protect her
than any other thing. The community was not aware that
he had a son with her. But the question that comes into the courts
mind
is that how did the community come to know and say the motor
vehicle which they saw accused driving at the flats which was a Red

Renault belonged to Ms S and also how did they know where she
resides.
[168].  Therefore, after careful
consideration of all the above facts the only inference that the
court can draw is in this
respect is that N did not voluntarily left
and that she does not want to be found to be untruthful. Something
happened to her.
ABUSIVE RELATIONSHIP
[169].  Now comes the question if
she did not leave on her own but she is still missing what happened
to her. And the State
is alleging that accused must have killed her.
Has accused really killed her or did really something happened to her
and what happened
her. In order to answer some of these questions,
the court is of the view that it has to go back and look and the way
the accused
and N lived, conducted their lives together in their
marriage relationship, prior to N went missing.
[170].  The State had submitted
that accused is or was an abuser. According to accused he is not an
abuser, he loved his wife
(N very much) Like any married couples they
had their share of up and downs in their marriage.  At the
beginning they had
problem but they had worked them out.
[171]. According to the evidence of
four State witnesses being Ms Cynthia Crouse, Ms Esme Hogarth, Ms J A
and Mrs D A accused used
to assault N at least twice a week.
[172]. Ms J and D A testified N will
come at their house and they will see that she had bruises on her
eyes and hands. As I have
stated above at one stage N had to hide
from accused because of he was abusing her. She went to stay with her
Aunt at Jeppestown.
[173]. According to exhibit S on the
23 January 2012 N went to the Domestic Violence Court and obtained an
Interim Protection order
against accused.
Ms Janest testified further that at
one stage accused had stabbed N on her left-hand side just next to
her breast.
[174]. Ms Phindile Ludidi testified
that during the 20 January 2015 she saw N hiding behind the clothes
in the shop, and she took
her to the office to inquire from her what
was the problem.  N told her that accused was chasing her. She
then wrote exhibit
“M” and give it to accused, which is
an order by Woolworths which is to the effect that accused should not
come to
the Woolworths shop, even if it is only to pay his account.
He was banned from entering their shop.
[175]. During the testimony of accused
he testified that during 2012 they were only two years in their
marriage, and like any marriage
couples they had their problem He
also went to Market Street to go and issue a protection order against
N. At one stage he was
arrested and he also did the same thing by
having N to be arrested. N at one stage did stabbed him, on his head,
mouth nose and
he has a scar to that effect. She was the one who was
abusing him. Like verbally harassing him and not even cooking for him
threatening
him by saying she will one day leave him.
[176]. Accused presented exhibit T,
wherein the community signed a petition to the effect that he should
not be granted bail. Accused
also testified that the community in
their flats did not want him or them there. They allege they were
always fighting.
[177]. According to exhibit” N”
Ms J’s statement she has stated that since the dating time of
accused and N accused
has abused her sister, more so when he is under
the influence of drugs.
[178]. As much as accused says he
loved his wife and he has never assaulted her, evidence and also on
his own evidence they did
not have a healthy marriage relationship it
was volatile.  Therefore, I have come to the conclusion that
accused was an abuser,
he abused N. He was used to assaulting her.
Is
the accused untruthful person
.
[179]. State wants the court to draw
an inference that accused is a liar. Based on the behaviour of
accused. The State went on to
call several witnesses to demonstrate
this fact.
[180]. The State presented evidence
that on the 12 March 2015 just a day before the disappearance of N
accused pawned N cell phone
for R100,00. Accused testified that N did
not have money for bus ticket. So, they pawned the said cell phone
Samsung, in actual
fact N did not own any cell phones, both cell
phones belonged to him. He had borrowed N the said Samsung phone
during the time
she was admitted in hospital and when they were in
financial constrained, they had to pawn the said phone in order that
N could
buy a bus ticket for the month.
[181]. However according to the
evidence of J A and D A on the 13 March 2015 N came to their house
and took out an amount of R300,00
from which she gave her mother
R200,00 so that she could go and buy her comforter set at China Mall
the following day and she will
come and collect it when she comes
back from work. She also give her mother her bank card so that she
could go and draw money from
her account so that J could go and buy Z
shoes at Woolworths. Therefore, the court cannot accept that the
reason accused pawned
the cell phone was for bus ticket. N had money,
if she needed bus ticket, she could have used the R100,00 that she
retained from
the R200,00 that she give to her mother.
[182]. On the 19
March 2015
accused pawned another cell phone Nokia. And the explanation that he
give was that he needed money so that he could go
and search for N at
the hospitals. Like at Helen Joseph and Chris Hani Baragwanath
Hospitals. However according to exhibit N, J
A, the family had split
themselves as to which group should go where, there is no where it is
mentioned that accused needed money
or was running short of money to
can go with C.
[183]. Accused had also testified that
he had fitted a ceiling at Ms Glenda’s house and he finished
same on Sunday, possibilities
are that he was paid for that work, if
he really did work there. Does it mean accused had used the said pay
within 4 days that
is from the 15 to the 19 March 2015. This the
court found it to be not truthful.
[184]. State further presented the
evidence of Elizabeth Sonti who was N’s colleague at Woolworths
shop, she testified among
others that accused called Woolworths shop
in the morning of the 14 March 2015 at 09h00 saying he is N’s
husband and that
Nicolatte has missed her bus and she was going to be
late. According to her since she worked with N, she has never been
late, however
she cannot deny perhaps other employees were aware that
she sometimes comes late.
[185]. However, the only thing accused
denied was he called at 09h00 but he is sure he called at 08h30. On
accused on testimony
he had stated that N boarded a taxi to town at
08h30, from there he went to his mothers-in-law’s house, to
deliver the chicken
livers and to give his daughter the Jelly Totts
sweets that he got from N, and he was reminded by his mother-in law
not to forget
to call Woolworths store (shop). The court does not
understand why should accused insist that he called Woolworths shop
at 08h30,
since it clearly shows that at 08h30 N allegedly boarded a
taxi to town, he had to walk to his mother in law’s house,
surely
by the time he called it must have been after 08h30 at around
09h00.
[186]. Among the evidence of Alina
Liau is to the effect that she received a call from accused while she
was at Mahikeng, and accused
was inquiring if she has seen N, because
accused told her that he saw N boarding a taxi which had four men
inside it and headed
to Soweto. Should she see N she must call him
and accused was insisting even when she was telling him that
currently she was not
in Soweto but at Mahikeng. She confirmed that
she does stay in Soweto but on that day, she went home at Mahikeng.
Accused insisted
that he did not say N travelled to Soweto in the
company of four men. Alina must has misheard him.
[187]. According to Ms V D when she
ask accused as to why he did not call N on her cell phone he replied
by saying he was in possession
of N’s cell phone. It was put to
her that accused was embarrassed to have informed her that they had
pawned the said cell
phone. She further testified that accused had
informed her that he was no longer drinking alcohol for the past 2
months. This is
surprising because Sergeant Maluleke testified that
on the 15 March 2015 when accused came to Booysens Police Station he
was smelling
of alcohol, and very strong so.
[188].
Mr Don Johnson testified to the affect that accused sold him his flat
for R6000,00 and give him R1000,00 deposit, however
accused failed to
can give him occupation of the said flat, because he kept on laying
and he ultimately avoided him. Accused denied
that he sold him the
flat, he only wanted him to come and look after the flat while he was
going to work at Cape Town. However,
he admitted taking Mr Johnson’s
deposit of R1000,00. When court looks at exhibit U1, at the bottom of
the said exhibit it
is clearly stated that “… stay at
the flat and as time goes on,
He must sort out the matter with
the Council
. The interpretation
of this document confirms that accused sold the said flat to Mr
Johnson, it does not speak of rental. From
the evidence of Ms D A
those flat where controlled by City Council, and the court accept
that accused sold the said flat to Mr
Johnson, he is not truthful
when he testified that he only wanted him to look after it while he
went to Cape Town.
[189]. Lastly when it comes to this
aspect the State presented the evidence of Ms S and Mr G L. It is not
in dispute that accused
borrowed Ms S motor vehicle after telling her
that he received a call that his daughter K together with her
grandfather, accused
ex-father-in-law, where involved in motor
accident and have been admitted at Lenmed clinic at Lenasia. Upon his
return, wherein
he allegedly searched for them and he could not find
them, he lied further to her by telling her that daughter was fine
the only
person who is remaining in hospital is K’s
grandfather.  Mr G L denied that they were ever involved in any
motor accident
together with his granddaughter. Accused testified
that one of Mr G L son-in-law who is abusing drugs, is the one who
told him
that story.  He further requested Ms S to lie if anyone
could ask her if at any stage, she had borrowed him, accused, her
motor vehicle, a fact that Ms S was not prepared to do.
[190]. Therefore, when the court looks
the totality of all the above facts, regarding this fact, of accused
being a liar, untruthful
it is clear that the only conclusion that
one can come to is that accused is indeed not a truthful person.
BLOOD INSIDE THE FLAT (OF N AND
ACCUSED)
[191]. It is not in dispute that
accused and N blood was found inside their flat.
[192]. Defence had an issue regarding
the chain of evidence with regard to the blood, exhibit, that was
lifted from the empty room.
They were alleging that because the
exhibit number that was written on the exhibit bag and on the
covering letter that Sergeant
Nkuna had written, sending the exhibits
to FSL, where different, it meant that those exhibits which were
lifted at accused flat
where tempered with or they were not same
exhibits as the ones that were lifted at accused flat and ultimately
send to FSL.
[193]. Sgt Nkuna testified that at the
time he was lifting the exhibits, the two swabs A1 and A2 as depicted
on exhibit A, photos
11 to 13, he placed the unique serial numbers on
the floor where he was lifting the samples from. The number that is
appears there
is 14DCA5191, he then inserted the said exhibits, swabs
into one forensic bag which had number PA 400 191 5598.
[194]. During the time that he had to
write a covering letter that accompanied all the exhibits that he had
lifted inside the flat
of the accused, he made a typing error by
writing PA 400 191 8998 instate of the correct forensic bag
number of PA 400 191
5598 (the difference is on the middle digit
numbers 89 instate of 55).
Sgt Nkuna further testified that after
collecting all samples and exhibits at accused flat he then put all
those exhibits in one
big forensic bag, number PA 300 0756 814 and
give same to the investigating officer Constable Tsunduka Kubyayi to
deliver at Pretoria,
Forensic Science Laboratories (FSL)
[195]. According to exhibit “J”
which is an affidavit made in terms of
section 212(4)
of the
Criminal
Procedure Act 51 of 1977
by  Ms Selina Khelina Mahlangu and
administrative Clerk in the South African Police services attached to
the Biology Section
of the Forensic Science Laboratory wherein at
paragraph 3 she had stated that “During the course of her
official duties on
the 2015-05-08, she received one sealed Evidence
sealing bag with reference number PA 3000756814 and marked inter alia
“
BOOYSENS CAS 225/04/2015” from Constable Kubhayi
[196]. She went on to state at
paragraph 4 that “
No breaking of the seal and examination of
the contents in the Evidence sealing bag was carried out by her”
At paragraph 5 she stated that she then handed over the above
sealed Evidence sealing bag to the Administration of Biology Section

at FSL in the same condition that she received it.
[197]. Then when one looks at exhibit
“K” which is an affidavit made in terms of
section
212(4)
of the
Criminal Procedure Act 51 of 1977
by
Warrant Officer Sihawusenkosi Ignatius Manzini, wherein at paragraph
3 He had stated that “ During the course of
my official duties
on the 2015-05-20, I received one sealed Evidence sealing bag with
reference number PA 3000756814 and marked
inter alia “ BOOYSENS
CAS 225/04/2015” from the Administration component of the
Biology Section of Forensic Science
Laboratory. It contained the
following:
3.1 One sealed evidence bag with
reference number PA 400 191 5598 and marked inter alia “BOOYSENS
CAS 225/04/2015 containing:
3.1.1 One sealed swab guard box with
reference number 14 DCA5191 marked inter alia “A1”
containing one swab.
3.1.2 One sealed swab guard box with
reference number 14 DCA5191 marked inter alia “A2”
containing one swab, he went
on to mention all the exhibits which
were lifted at accused flat.
[198]. The court is therefore
satisfied that the correct samples blood swabs that were lifted in
the empty room of accused flat
were received by the Forensic science
Laboratories at Pretoria
[199]. Now coming to the evidence of
expert witnesses, like Sgt Nkuna, W/O Naidoo, W/O Mnisi, and also
whether the court should
accept that Professor Huddle, who testified
on behalf of accused, was an expert witness or the court should
accept his testimony
in this matter as that of an ordinary witness
who is but doctor and professor. The evidential value of the expert’s
testimony
will depend on the expertise of the expert (with reference
to qualifications, experience, knowledge of the subject) as well as
the reliability of the evidence, including corroboration of the
evidence. The opinion should be accurate, impartial and objective.
[200]. During the testimony of Sgt
Nkuna he placed his qualifications on record and the training that he
has undergone. He testified
that he is also an expert on blood
spatter. He has been a police officer for the past 10 years of which
8 years was spend while
at LCRC, as an expert in that department.
[201]. Warrant Officer Trishen Naidoo
also placed her qualifications into record, and also appears on
Exhibit “G” she
is a Forensic Analyst and a reporting
Officer she has 12 years’ experience in the Biological sciences
[202]. Warrant Surprise Mnisi also
placed his qualifications into record, and also appears on Exhibit
“H” he is a Forensic
Analyst and a reporting Officer he
has 09 years’ experience in the Biological sciences
[203].
The court must be of the opinion that the person is an expert and
competent to
testify as an
expert. The expert testimony must comply with three basic
requirements:
(a)
The basis for the expertise: the expert’s
qualifications, experience, expertise and knowledge must be put
before the court
.
(b)
The basis for the opinion and reasons for the opinion must be
put before court, which must be based on the facts in the case.
(c)
The opinion of the expert must not displace that of the court
– the prime function of an expert is to guide the court to a

correct decision on questions falling within the expert’s
specialised field (
S v Gouws
1967 (4) SA 527
(EC)
on 528D) See also:
R
v Vilbro
1957
(3) SA 223
(A) and
S
v Haasbroek
1969
(2) SA624 (A).
[204].
It is generally required from experts to comply to high standards of
accuracy and diligence when they conduct inquiries and
perform tests
(for ex ballistics, fingerprints, DNA). Mere referring to text books
would be inadmissible hearsay. The expert must
have personal
knowledge of the subject, and should use text book only to refresh
memory, to explain a theory or to strengthen opinion.
[205].
At the stage the court is
satisfied that Sgt Nkuna W/O Naidoo and W/O Mnisi has the required
expertise on the field that they have
testified on and as such the
court accept them as being expert in this matter.
[206]. Regarding Professor Huddle, he
may be an expert in his field however the evidence that he tendered
in this matter was only
based on what was written on the Exhibits “V1
to V3” he did not personally attend to N, he was at a
disadvantage because
he was only given one document which he was
expected to can make an opinion on it, and also from the say so of
accused. the court
will also deal in more detail about his opinion
when it deals with the whole evidence involving the blood. The court
is also aware
that Doctor Huddle has never testified in any court in
his life time and his knowledge on the issue of a person who suffers
from
hepatitis or liver disorder has never been put to the test.
[207]. It is not in dispute that, Sgt
Nkuna lifted blood from one of the empty rooms of accused’s
flat, he also found blood
on the blue track suite, which was worn by
N and blood was also found on the two pillow(cases) and these items
were found inside
the main bedroom of accused flat.
[208]. Sgt Nkuna also testified that
the way the blood was seen on the floor of the empty room, it was on
a straight line and it
showed like something was moved, or dragged or
even pulled. If someone tried to wipe the blood from the floor, there
could have
been some foreign items on them. This did not show that
there was any pull of blood which was left there or even if someone
was
standing and the blood became droplets.
[209]. The blood found was dry however
it could be seen by naked eyes, however in order to lift those swabs
he had to put some chemicals
on the said blood. He further testified
that the blue track suite was torn as if it was also pulled.
[210]. Warrant Officer Nadioo did the
DNA test on the samples taken from the two swabs, lifted from the
empty room, and also from
the blue track suite and one pillow case
and found that all belong to N, after comparing same with the
controlled sample of N’s
daughter Z. Since is the biological
mother of Z, and according to testimony she also donated some of her
DNA to Z.
[211]. She also testified that, the
blood which was found on the track suite were found around the pocket
area, right front thigh
and also towards the foot, at an angle of the
foot.  At the back side it was found bellow the buttocks, left
below the knee.
They look like they were smeared not spots.
[212]. Warrant Officer Minisi after
doing the DNA analysis on the blood found on the remaining pillow
case and comparing it with
the controlled samples obtained from
accused.  He came to the conclusion that it was accused blood
that was found on the pillow
case.
[213]. The question is how and why did
N’s blood end up in the empty room. When did her track suite
get torn, how was it torn?
How did her blood get into the pillow and
lastly when did this blood get into the said pillow?
[214]. During cross examination of the
witnesses, by the defence, it was put to the witnesses that N used to
suffer bleeding and
also that the blood that was found on her track
suite could have been or it was due to her menstruations.
[215]. The defence called Professor
Huddle to confirm that due to the illness that N was suffering from
it will make her to bruise
easily and whenever she bleeds will have a
severe blood loss.
[216]. As I have indicated above
Professor Huddle did not receive the complete history or file(s) of
the illness of N, he only based
his answers on the two documents that
he received from South Rand Hospital, being exhibits V1 and V2. Does
not say anything about
N being admitted and or suffering from any
severe bleeding. The only thing Professor Huddle testified to was N
had a query Hepatitis
and it was related to having a problem with her
liver.  She was referred to Chris Hani Baragwanath for further
check-ups.
After being discharged at South Rand Hospital being
declared “clinically very well”
[217]. Professor Huddle did not get
the report from Baragwanath Hospital as to what was the follow up or
what was the outcome of
the further investigations. Professor Huddle
give his opinion of a situation wherein a person who is suffering
from hepatitis can
be expected to surfer more like having a loss of
blood, as I have stated above, he did not get a full medical history
of N therefore
his opinion is based on one word only suffering from
hepatitis and accused say so. In
Mathebula v Road Accident Fund
(05967/05)
[2006] ZAGPHC 261
(8 November 2006) at paragraph 13
the Court held that:
“
An expert is not entitled,
any more than any other witness, to give hearsay evidence as to any
fact, and all facts on which the
expert witness relies must
ordinarily be established during the trial, except those facts which
the expert draws as a conclusion
by reason of his or her expertise
from other facts which have been admitted by the other party or
established by admissible evidence.”
[218]. N was discharged at South Rand
Hospital having being declared clinically very well. Secondly there
is no evidence, even from
accused as he was leaving with her, that
she continued to have the same problems, it seemed her life continued
to be normal.
[219]. According to accused evidence N
complained of stomach pains and she was taken to a private doctor who
did some sonar, and
said that she might have had a miscarried. After
three days she was admitted at hospital for the same complains.
[220]. Therefore, the court does not
accept defence version that N suffered from blood problems.
[221]. Accused had testified that on
the 13 March 2015 everything was fine between himself and N, they
even made love on that evening,
and N was wearing her “pyjama”
track suite, at the time they made love she took it off and folded it
and put it on
top of ironing board, when it comes to blood that was
found on the that track suite he testified that he does not know
anything
about it, which means he did not see when they were making
love that N was bleeding or she was on menstrual period. W/O Naidoo
testified that menstrual blood was bound to be found on the crouch,
even if the lady was overflowing during her menstrual period,
in this
respect none was found, instate it was found at the buttocks and on
the legs almost outside the legs around the pockets
of the track
suite.
[222]. There is also the blood of N
that was found on the pillow, accused testified that he does not have
any knowledge how it came
there. There was no version which was put
to the witness as to how the said blood could have been there.
[223]. As a result, the Court reject
the defence version that the blood that was found in the main
bedroom, more so the one that
was found on the track suite was a
result of N’s menstruations.
[224]. Now coming to accused blood
that was found on the other pillow. Accused give an explanation that
it was some blood that came
about some times about 6 to 12 months
back. He was assaulted by N on three different times, even on the
mouth, and while he was
sleeping, he felt some blood coming out of
his mouth again, earlier on he did rinse the said blood from his
mouth, apparently it
seemed it came back again while he was sleeping.
that is why his blood was found there.
However, the blood that was found on
the pillow was not one stain of blood droplet, however it was several
droplets almost all over
the pillow (case).
[225]. Accused testified that the said
the pillow was washed several times, however due to the material that
made the pillow, which
is thick, it was not easy to can thoroughly
clean or erase the said blood. Possibilities are if really the
accused was assaulted
about 6 to 12 months back, and the pillow case
was washed several times there wouldn’t be any blood that could
be seen by
the naked eyes. That is why Sgt Nkuna was able to can take
that pillow case and send it to the FSL. As a result, the court
reject
accused version that his blood that was found on the pillow
case is as a result of having been assaulted by N some 6 to 12 months

back.
Scratches over Accused head
[226].
Accused had a scratch or scratches on his head, or around his ear
Constable Maluleke and Ms J A testified that they saw that
accused
was injured on the head towards his ear(s), accused give an
explanation and called Ms Glenda Ramsunda to confirm that the

scratches that were seen on his head where as a result of ceiling
falling on his head.  Accused had testified that while he
was
busy fitting a ceiling at the backroom of Ms Ramsunda he slipped
while getting on the scaffolding and the ceiling must have
fallen on
his head, it was on the crown of his head, it was far from his ears.
The said injuries were just a small scratch, which
he felt it when he
was washing his face and head, it had that stinging feeling.
[227]. However, Ms Ramsunda testified
to the effect that as accused and his friend where working on the
ceiling it feel on accused,
he was injured on the head towards one
ear she is not sure which side left or right. He had an open wound
blood was coming from
that wound she had to wash it with Dettol. They
were fitting a ceiling in his main house, even where the ceiling came
out it is
still visible, she just painted it
[228]. The two version are
contradictory, and court regard them as material to each other, If
really accused was injured at Ms Ramsunda
place while fitting a
ceiling surely, he could have testified to the effect that Ms
Ramsunda washed him with Dettol, but he emphasised
that the injury
was just a scratch which one feels when is washing himself there was
no blood that came out it.
[229]. Further Ms Ramsunda testified
that the said ceiling was a chalkboard ceiling, which means
probabilities are that it would
not scratch the accused it could at
least had caused a blunt force injury and secondly according to
accused the ceiling had not
as yet been fitted but they were on the
process of doing that whereas from Ms Ramsunda’s evidence it
was more like a peace
that came out of the ceiling, it was already
fitted but it felt down. What the court does not understand is if it
came out of the
“ceiling” and currently the place where
it came from is still visible and that space has just been painted,
what kind
of a ceiling was it, if it was really a chalkboard ceiling,
probabilities are once it feel it will break, and once it breaks it

will never be assembled and put back again, is it truthful that
accused fitted a ceiling at Ms Ramsunda’s place or not?
[230]. As a result, the court find
that the version that the injuries that accused got over his head was
just a scratch and he got
it while working at Ms Ramsund’s
place is not possible and a result it is rejected.
DID ACCUSED KILL N OR NOT
[231]. As I have indicated earlier the
State case is based on circumstantial evidence and once evidence is
identified as being of
a circumstantial nature, the question arises
as to how it should be dealt with in view of all the other evidential
material.
[232]. Circumstantial evidence is not
necessarily weaker than direct evidence.  In some instances, it
may even be of more value
than direct evidence.  Inferences are
drawn from circumstantial evidence. In this process certain rules of
logic must be followed.
[233]. The concept “circumstantial
evidence” has become virtually synonymous with the landmark
decision in
S v Blom
1939 AD 188
.,
This decision has been quoted in several cases and it had stated
clearly that certain rules of logic have to be complied with once

inferences are called for. At page 202 it is stated that
:
“
In reasoning by inference
there are two cardinal rules of logic which cannot be ignored: (1)
The inference sought to be drawn must
be consistent with all the
proved facts.  If it is not, the inference cannot be drawn.
(2)  The proved facts should
be such that they exclude every
reasonable inference from them save the one sought to be drawn.
If they do not exclude other
reasonable inferences, then there must
be a doubt whether the inference sought to be drawn is correct.
[234]. Can the court draw the
inference that accused knows the whereabouts of N and as the State
put it, he killed N and he knows
what he did with her body. Is this
the only inference that can be drawn in circumstances?
[235].
Court has already found that accused was an abuser, on the 13 March
2015, the two neighbours, Ms Crouse and Ms Hogarth testified
that
they heard that accused and N where fighting and Ms Hogarth testified
further that she heard N saying “my head, my head”
(My
Kop, Me Kop).
[236]. Accused testified that he does
not know how the blood of N came to be at the empty room, and Sgt
Nkuna testified that due
to the straight line of blood that was found
in that room one can come to the conclusion that something was moved.
The track suite
of N was torn, accused testified that the said was
due to the track suite being old and further when ask by court he
said it was
due to ironing, it was burned by iron, which the court
find that it is not consistent. Further if one looks at the track
suite
at picture 27 and 28 of Exhibit “A”, one can see
that it was not burned but more like it was pulled on the ground.
[237]. Accused had borrowed Ms S motor
vehicle not only once but twice, he even requested her to lie, saying
that should she be
ask by anyone if he had borrowed her motor vehicle
she should say no, he testified that the N’s family and the
community
where starting to be inquisitive, however he told her to
lie as early as the 15 March 2015 on that day they went to the police
station to open a case of a missing person and by that time the
family where not as yet suspicious of him.
[238]. Another factor which the court
cannot ignore is that he testified that he was working at Ms
Ramusanda’s place on the
14 March 2015. As the State has
correctly pointed out the time line between what accused had
testified to and that of Ms Ramsunda
they do not tally at all.
[239]. According to accused testimony,
on the 14 March 2015, after leaving his mother-in-law’s place,
he went to Ms Ramsunda’s
place. However, Ms Ramsunda testified
that accused and his friend Hasaan came to her house early in the
morning, and while they
were waiting for her husband, she asks them
if she could make tea for them, of which accused replies that no he
is going to take
his wife to the taxi rank, which is totally
different from accused testimony as stated above. Ms Ramsunda cannot
remember anything
about accused, except that he was injured, when he
came to fit ceiling at her place.  The court finds that accused
story that
he went to Ms Ramsunda to work on her ceiling as a
fabrication.
[240]. Circumstantial evidence often
forms an important component of the information furnished to the
court. In these instances,
the court is required to draw inferences,
because the witnesses have made no direct assertions with regard to
the fact in issue.
These inferences must comply with certain rules of
logic. Circumstantial evidence furnishes indirect proof. Like in this
case where
the facts have proven that:
1.
N did not just disappear.
2. Accused was abusive towards N and
their marriage relationship was turbulent.
3. Accused is not a truthful person.
4. Blood of accused that was found on
the pillow was not “old blood” that came about 6 to 12
months back, probabilities
are that those bloods droplets came about
at the time they were fighting with N.
5. Blood of N which was found on her
track suite and pillow case were not menstrual blood as accused had
stated and the said track
suite was torn by being pulled on the
ground.
6. The scratches on accused head and
near his ear(s) which he received where not from fitting the ceiling
at Ms Ramsunda’s
place instate there are strong probabilities
that he got those scratches while he had a fight with N, as was
testified to by the
two neighbours, Ms Hogarth and Crouse that they
had a fight on the 13 March 2015.
7. Accused testified that he does not
know how the blood of N came to be at the empty room, and Sgt Nkuna
testified that due to
the straight line of blood that was found in
the empty room one can come to the conclusion that something must
have been moved.
[241]. Therefore, following upon the
principles stated in
S v Blom
and upon the following cases:
[241.1] In
S v Jackson
1998 (1) SACR 470
(SCA)
@ 476e-f
Burden is on the State to
prove the guilt of an accused beyond reasonable doubt, no more and no
less. The evidence in a particular
case may call for a cautionary
approach, but that is a far cry from the application of a general
cautionary rule.
[241.2]
In
S v Nyembe
,
2014 (1) SACR 105
(GSJ)
Van Oosten, J held as follows at para [8]
“…
In
S v S.
[2012] ZASCA  85
the Supreme Court of Appeal held: 'A court
does not look at the evidence implicating the accused in isolation to
determine whether
there is proof beyond reasonable doubt nor does it
look at the exculpatory evidence in isolation to determine whether it
is reasonably
possible that it might be true.
The correct approach is set out in the
following passage from
Mosephi and Others v R
LAC
(1980 – 1984) 57 at 59F – H
:
“
The question for
determination is whether, in the light of all the evidence adduced at
the trial, the guilt of the appellants was
established beyond
reasonable doubt. The breaking down of a body of evidence into its
component parts is obviously a useful guide
to a proper understanding
and evaluation of it. But, in doing so, one must guard against a
tendency to focus too intently upon
the separate and individual part
of what is, after all, a mosaic of proof. Doubts about one aspect of
the evidence led in a trial
may arise when that aspect is viewed in
isolation. Those doubts may be set at rest when it is evaluated again
together with all
the other available evidence. That is not to say
that a broad and indulgent approach is appropriate when evaluating
evidence. Far
from it. There is no substitute for a detailed and
critical examination of each and every component in a body of
evidence. But,
once that has been done, it is necessary to step back
a pace and consider the mosaic as a whole. If that is not done, one
may fail
to see the wood for the trees.”
[241.3] The cogency of circumstantial
evidence depends on the circumstances of each case and in particular
on the totality presented
in court. In
Nthele v
S 1998(3)
ALL SA
517 (A) at 518
it was stated that where the State relied on
circumstantial evidence it is sufficient that the accumulative effect
of the evidence
before the Court indicate that the accused is guilty
beyond reasonable doubt
[241.4]
S v Reddy and Others
1996
(2) SACR 1
(A) at 8 c-h:
“
In assessing circumstantial
evidence, one needs to be careful not to approach such evidence upon
a piece-meal basis and to subject
each individual piece of evidence
to a consideration of whether it excludes the reasonable possibility
that the explanation given
by an accused is true. The evidence needs
to be considered in its totality. It is only then that one can
apply the oft-quoted
dictum in
R v Blom
1939 AD 188
at
202-3
, where reference is made to two cardinal rules of
logic which cannot be ignored. These are, firstly, that the inference
sought
to be drawn must be consistent with all the proved facts and,
secondly, the proved facts should be such 'that they exclude

every reasonable inference from them save the one sought to be
drawn”.
The matter is well put in the
following remarks of Davis AJA in
R v De Villiers
1944 AD 493
at 508-9
:
“
The Court must not take each
circumstance separately and give the accused the benefit of any
reasonable doubt as to the inference
to be drawn from each one
so taken. It must carefully weigh the cumulative effect of all
of them together, and it is
only after it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the
inference of guilt is the only inference
which can reasonably be drawn. To put the matter in another way; the
Crown must satisfy
the Court, not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond
reasonable doubt inconsistent with such
innocence.”
[242].  If one puts aside the
far-fetched conjecture it seems to me that the circumstantial
evidence in this case, consisting
of so many probative factors, all
pointing in the same direction, leads the court to the irreversibly
to the conclusion that accused
had planned and killed N and he has
disposed off her body or he knows where he had placed it.
[243].  The last question is can
accused be convicted of the murder of N without her body.
[244].  In this regard one has to
look at the case of
S v Nkuna
2012 (1) SACR 167
(B)
and those
cases that were referred thereto in that case at paragraph [116] The
absence of the body (
corpus delicti
) is not an
insurmountable bar to finding an accused guilty of murder. The
learned authors make it a prerequisite that
there must be a
reasonable explanation for why the body should be missing
. What
will be a satisfactory explanation will most definitely depend on the
evidence tendered? I think that not only must the explanation
be
satisfactory to the court but it must also be reasonable and
reconcilable with the evidence tendered. In this case it is
clear
that accused well planned the removal of the body of N and he made
sure that he alone will know what happened to the body,

notwithstanding the thorough search which was conducted by the
police, I find that accused had an advantage in that before he could

be regarded as a suspect he already had about 3 to 5 days within
which probabilities are he disposed of the body. He was seen on
the
14
th
and 15
th
March 2015 driving Ms S’s
motor vehicle. Accused looks like a very intelligent person, he
testified that he was advised to
write each and everything that
happens the minute he was informed that he was a suspect. Which makes
it probable that he was able
to look at the evidence which the state
had against him and plan around it.
[245].  “[111]  To
require the production or discovery of the body (
corpus delicti
)
in all cases would be unreasonable and unrealistic and, in certain
cases, would lead to absurdities. To my mind it would lead
to a gross
injustice particularly in cases where a discovery of the body is
rendered impossible by an act of the offender himself.
[246].
[113]  It is not hard to think what the state of affairs would
be in this country if the legal position were to
be that, whenever a
murder is committed and the body (
corpus
delicti
) of a deceased
is not found, the accused is then entitled to his acquittal; and that
being so, despite the existence of overwhelming
circumstantial
evidence that points a finger to the accused person. See
S
v Nkuna.
[247].  It is true that a crime,
even murder, may be proved without the motive being established.
But it is always very
important to consider whether the accused had
or may well have had a particular motive for killing the deceased. It
is clear that
accused was already angry on the night of the 13 March
2015 when they left his mother-in-law’s house with N, according
to
J A’s statement Exhibit “N” at paragraph 5 she
had stated that
“
When she was talking to my
mother M A was panicking he wanted them to leave and she kept on
talking to my mother. He stood up letting
her alert that they must
leave he was acting so rude…Then my sister give my mother her
works share book to keep it for her
till Monday when she has to
submit it at work with other forms”
[248].
“[112] It is thus proper for a court to convict an accused on
circumstantial evidence provided it has the necessary
probative force
to warrant a conviction, and the fact that death can be inferred from
circumstances that leave no ground for a
reasonable doubt. See:
S
v Nkuna
, and
S
v Sikosana
1960(4)
SA 723 (A).
[249] Therefore, the court is
satisfied that the State succeeded in proving the guilt of the
accused beyond reasonable doubt.
The accused is therefore found
guilty as charged that is:
249.1 Murder read with provisions of
section 51(1)
of the Criminal Law amendment act 105 of 1997;
249.2 Defeating or Obstructing the
course of justice.
_______________________________________
C K MATSHITSE
ACTING JUDGE OF THE HIGH COURT,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances:
Date of Trial: 05 - 16 March 2018;
04 - 06 July 2018;
25 - 27 September 2018;
10 -15 October 2018; and
10 - 19 December 2018
Date of Judgment: 19 December 2018
On behalf of the State: Adv M T
Ntlakaza
Instructed by: Director of Public
Prosecution
On behalf of the Accused: Ms L Qoqo
Instructed by: Legal Aid South Africa