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[2024] ZAECELLC 30
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S v Methula (CC49/2021) [2024] ZAECELLC 30 (29 April 2024)

IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO. CC 49/2021
In the matter between:
THE STATE
and
NDUMISO
SICELO METHULA
Accused
JUDGMENT
LAING J
[1]
The accused has been charged with murder.
It is alleged that he unlawfully and intentionally killed Ms Thandi
Mbawu (‘the
deceased’) at or near Ncerha Village 3, on or
about 27 March 2020. The state indicated its intention to invoke the
provisions
of the
Criminal Law Amendment Act 105 of 1997
in the event
of a conviction.
[2]
The accused pleaded not-guilty to the
charge. His legal representative explained, in terms of section 115
of the Criminal Procedure
Act 51 of 1977 (‘the CPA’),
that the accused and the deceased had been married to each other but
had divorced in 2016;
nevertheless, they had continued to live with
each other, under the same roof. The relationship deteriorated
steadily, such that
protection orders were obtained by each party
against the other. This situation affected the accused mentally,
physically, and
emotionally. Consequently, the accused’s state
of mind was affected at the time of the incident; he relied on
non-pathological
criminal incapacity (automatism), as envisaged under
section 78 of the CPA, as the basis for his defence.
[3]
Various admissions were made in terms of
section 220. The accused admitted the identity of the deceased and
the place and date of
her death. He admitted that the chief cause of
her death was a stab wound to the heart. He also admitted that the
post-mortem report
and the injuries and observations contained
therein pertained to the deceased, that she died because of such
injuries, and that
she sustained no further injuries from the time of
her death until the post-mortem examination.
[4]
The above admissions, copies of two
protection orders, and a copy of the decree of divorce, were admitted
as exhibits.
Case for the state
[5]
The state led several witnesses, whose
testimonies are summarised below.
Dr Ongama Ntloko
[6]
The first state witness was Dr Ongama
Ntloko, who is a forensic pathologist. He had examined the deceased
on 30 March 2020 and found
three incisions on the anterior chest
wall, two fractured ribs, and a lacerated left ventricle of the
heart. He was of the view
that the cause of the fractured ribs was
the application of major force to the deceased’s body, using a
sharp object; there
would have been considerable pain. The cause of
the death was a stab wound to the heart. The left lung of the
deceased had collapsed,
too, resulting from the piercing or
laceration of her chest. He confirmed that any wound inflicted to the
chest was dangerous because
this was where vital organs were located,
e.g. the heart and the lungs.
Dr Rensche van Niekerk
[7]
The next state witness was Dr Rensche van
Niekerk, who worked as a general practitioner in the Casualty Unit at
Frere Hospital.
She treated the accused upon his arrival at
approximately 01h20 on 28 March 2020, suffering from a two-centimetre
laceration on
the left-hand side of his chest. A Sgt van Rieck had
requested her to examine him. There were minor blood stains on his
clothing,
but no evidence of abrasions or bruises. She testified that
the accused had been stable at the time and had followed her
instructions
and commands; there was no suggestion that he did not
know where he was or what was happening. She could not exclude the
possibility
that the wound was self-inflicted.
Ms Thembisa Dontsa
[8]
Dr van Niekerk’s evidence was
followed by that of a Ms Thembisa Dontsa. She was a neighbour to the
accused and the deceased
and had known them both well. She was not
aware of any incidents of abuse between the couple and confirmed that
their relationship
with their children was good. On the day in
question, Ms Dontsa saw the accused sitting on his verandah, alone.
Later that day,
a Ms Dimpho Maphalane visited Ms Dontsa, crying,
saying that the accused had killed the deceased. She was accompanied
by the deceased’s
child, who was also crying. Ms Dontsa
proceeded to her aunt to fetch a phone for Ms Maphalane to contact
the police.
Ms Dimpho Maphalane
[9]
The state called Ms Maphalane. She
testified that she was from Lesotho but had found employment as a
domestic worker for the deceased,
commencing employment in early
2020. She resided at the deceased’s house. She said that the
deceased had resided with her
children, A and M. The accused did not
reside there but often visited, staying for two or three days at a
time. Ms Maphalane described
the relationship between the accused and
the deceased as bad, saying that they would not greet or speak to
each other.
[10]
On the evening of the day in question, at
approximately 18h00, Ms Maphalane saw the accused cooking
smileys
(sheep heads) at the entrance to the garage at the house. He was
drinking wine, too, which was the first time that she had seen
him
consume alcohol. At the time, she and the deceased were in the
kitchen. Ms Maphalane saw the accused enter the main house via
the
door from the garage and lock it behind him. He ordered her to leave
and to go to her bedroom, saying that he wished to speak
with the
deceased. She did so but stood next to the kitchen door because she
noticed something strange about his behaviour and
wondered what he
was up to. Ms Maphalane heard the accused ask the deceased where the
keys to his room were, to which the deceased
responded that she did
not know, the keys were usually with him. At this, the witness saw
the accused hit the deceased. He struck
her in the face with his fist
and she fell to the floor, her nose bleeding. Ms Maphalane spoke to
the accused from outside the
kitchen, begging him not to hit the
deceased and saying that she would look for the keys. The accused
told her that he had ordered
her to go to her bedroom. She still
refused to go. He attempted, unsuccessfully, to lift the deceased off
the floor before going
to a drawer from which he removed a knife. He
returned to the deceased with the knife and dragged her across the
floor to her bedroom.
At this stage, Ms Maphalane went to her own
bedroom. She heard the deceased crying in a loud voice and pleading
for Ms Maphalane
to help her and heard the accused asking the
deceased why she went around sleeping with men from Gauteng. The
crying suddenly stopped.
[11]
Ms Maphalane went to the deceased’s
bedroom where she saw her lying on the floor. She was not moving. The
witness offered
to call an ambulance, but the accused ordered her to
return to her bedroom and to throw her phone out of the window or
else he
would stab her. He was on his feet at the time, approximately
three to four metres away from her, and held the knife in his hand.

The knife was blood-stained. There were no injuries on the accused.
[12]
The witness also testified that she had
seen the accused crush his phone and that of the deceased. This
happened in the deceased’s
bedroom.
[13]
Ms Maphalane stated that she had gone to
her bedroom and thrown her phone under the bed. The accused followed
her. He noticed that
the window was open; he proceeded to close the
window and draw the curtains before leaving her bedroom and shutting
the door behind
him. Ms Maphalane left the house and went to a
neighbour to report the matter and to borrow a phone to call the
police. When the
police arrived, she accompanied them inside the
house; they found the accused lying on the floor, next to the
deceased.
[14]
The witness described how the incident had
left her shaken and disturbed. It ended her employment and broke the
close bond that
she enjoyed with the children of the deceased.
AM
[15]
The state applied for the appointment of an
intermediary in terms of section 170A to lead the evidence of the
accused’s minor
daughter, A. The application was granted. A
said that she was 11 years old and had been staying with her uncle,
aunt, and cousins,
in Cape Town. She attended a local primary school.
[16]
A testified that her parents never used to
talk to each other, they used to fight frequently. On the day of the
incident, she was
playing outside; her mother was inside the house
with the domestic worker, Ms Maphalane, and her father was cooking in
the garage.
Her brother, M, was playing with his friends elsewhere.
The accused called A and asked her to fetch her brother, which she
did,
returning to the house only to find that the door was closed.
Upon her knocking, the accused opened the door and instructed A to
go
and play again, before closing and locking the door. She found this
strange. A then heard her mother screaming. She wanted to
enter the
house but was unable to do so because the door was locked. The
screaming continued for a short while, after which Ms
Maphalane ran
outside, crying, and telling A that the accused had stabbed her
mother. A then went to the neighbour’s house
and the police
arrived thereafter.
MM
[17]
The state made a further application for
the appointment of an intermediary to lead the evidence of the
accused’s minor son,
M. Similarly, this was granted.
[18]
M testified that he was 12 years old and
resided and attended school in Cape Town. He described his
relationship with the accused
as good. He confirmed that his parents
had become divorced but still stayed together in the same house. He
also indicated that
the accused had had a girlfriend, Amanda, about
whom his mother had known.
[19]
On the day of the incident, M went off to
the park to play with friends, leaving his mother with Ms Maphalane
inside the house.
The accused was cooking
smileys
inside the garage. His sister, A, called him at the request of the
accused and he followed her back. The accused was inside the
house.
He unlocked the door upon their arrival but simply told them to go
and play. M found this strange. The accused seemed angry
at the time.
[20]
M returned to the park. However, he was
summoned shortly afterwards by a friend who arrived on a bicycle,
saying that his sister
and the domestic worker were crying. He went
back to the house and saw that both his sister and the domestic
worker were indeed
upset and that a police van was parked outside. Ms
Maphalane informed M that the accused had stabbed his mother.
Mr Sipho Mangengelele
[21]
The next witness for the state was Mr Sipho
Magengelele, who was the father of the deceased. He indicated that he
had enjoyed a
very good relationship with the accused prior to the
incident and helped him to build the house at Ncerha Village 3, in
the Kidds
Beach area.
[22]
At some point, his daughter informed him
that the accused had pursued several extramarital relationships,
which led to arguments
and eventually to her falling out of love with
the accused. The deceased subsequently obtained a protection order
against him after
he started assaulting her. When Mr Magengelele
confronted the accused about this, he told him that he, too, had
obtained such an
order; however, he never provided details about any
assaults that may have been carried out by the deceased. The couple
divorced
shortly afterwards; nevertheless, they continued to stay in
the same house, despite not having been on speaking terms.
Subsequently,
the deceased and her children came to live with him in
Mdantsane, only to return later to Ncerha Village 3.
[23]
On the day of the incident, Mr Magengelele
received a telephone call to the effect that his daughter was hurt.
He went to the house
at Ncerha Village 3 with a neighbour and a
friend, where they had encountered a large crowd of people, the
police, and ambulance
personnel. He was taken inside the house by a
W/O van Rieck, who requested him to identify the body of the
deceased, which he did.
He was terribly upset. He was then taken, at
his request, to the accused, who was detained inside a police van.
When Mr Magengelele
asked the accused what had happened, the latter
merely asked him, in turn, what had happened and the whereabouts of
the deceased.
[24]
A certain friend of the accused, Mr
Luthando Pikoli, was at the house. He spoke to Mr Magengelele and
informed him that the accused
had visited him in Amalinda earlier in
the day, leaving with
smileys
and alcohol. The bottles that were found at the house were almost
empty. It was Mr Magengelele’s opinion that the accused
had not
been able to give him an account of what happened because he had
consumed the alcohol.
[25]
Early on the following morning, said Mr
Magengelele, the accused’s father and brother had arrived from
Gqeberha. They proceeded
together to the police station in East
London where they found the accused, who again asked Mr Magengelele
the whereabouts of his
daughter. It seemed to Mr Magengelele that the
accused was suffering from a hangover. The accused’s father
said that he should
be released because he was not ‘OK’.
[26]
A few weeks’ later, Mr Pikoli
returned to Ncerha Village 3 and provided Mr Magengelele with a
letter from the accused, addressed
to the family. The contents of the
letter were placed on record, which amounted to an apology for his
actions and a plea for forgiveness.
Mr Magengelele stated that he did
not know how he would ever forgive him.
Sgt Luzuko Magungwana
[27]
The state called Sgt Luzuko Magungwana. He
testified that he had received a complaint about domestic violence at
about 18h30 on
the date in question and proceeded to the address with
his colleague, W/O Vumani Rungqu.
[28]
Upon their arrival, they met the domestic
worker, Ms Maphalane, who alleged that the accused had assaulted the
deceased. The officers
were taken to the garage, where they
discovered that the door was locked. All the remaining doors to the
house were locked, too.
Ms Maphalane took them to the deceased’s
bedroom, where Sgt Magungwana was able to gain access to the house
through a sliding
door; it was secured with what appeared to have
been a coloured necktie, which Sgt Magungwana severed. Upon their
entry into the
bedroom, the officers found the deceased lying on the
floor, on her back, and the accused lying next to her on his stomach.
A silver
knife lay between them. The accused appeared to have been
snoring. There was no response from the deceased when the officers
called
her; the accused simply sat up and looked at the deceased when
Sgt Magungwana asked him what had happened. Thereupon the officers

inspected the deceased and ascertained that she was not breathing.
They noticed a chest wound on her and saw, too, that there were
blood
stains on the accused’s clothing. On closer inspection, said
Sgt Magungwana, they had observed a wound on the upper
left side of
the accused’s chest.
[29]
Despite resisting at first, the accused was
handcuffed by the officers, who called the police station, requesting
an ambulance.
In the meanwhile, Sgt Magungwana inspected the house
and saw a trail of blood from the kitchen to the bedroom. Throughout
this
time, the accused did not respond to any questions put to him.
Sgt Magungwana confirmed that only the accused and the deceased had

been inside when the officers entered the house. He also confirmed
that he had found two cellphones next to the accused; they were

broken, as if smashed with a stone. He noticed, too, a smell of
alcohol but could not say whether this had come from the accused
or
whether it permeated the house in general.
W/O Vumani Rungqu
[30]
W/O Vumani Rungqu was the next state
witness. He was on patrol with Sgt Magungwana when they received a
complaint about domestic
violence.
[31]
They met Ms Maphalane outside the house and
heard that the accused was assaulting the deceased, whereupon they
tried to enter but
found that the doors were locked. They managed to
enter via a sliding door once Sgt Magungwana cut the twine that was
allegedly
used to secure it. W/O Rungqu was adamant that all the
doors to the house had been locked, even the windows. Upon entry,
they discovered
the accused and the deceased lying on the floor, with
a silver knife lying between them. He confirmed that the deceased had
been
lying on her back, the accused was lying on his stomach,
snoring; there was blood on the deceased’s chest. The accused
did
not respond when they woke him up and asked what happened;
however, it had been W/O Rungqu’s impression that the accused
was simply being uncooperative. He also offered some resistance when
they attempted to handcuff him. The accused had sustained a
small
wound on the left of his chest, which received treatment when the
ambulance personnel arrived.
[32]
When asked about the accused’s
sobriety, W/O Rungqu said that he was unsure. There was a smell of
alcohol inside the house;
he could not say whether this had come from
the accused. Later, the officers took the accused to the Kidds Beach
police station
where they explained to him his constitutional rights;
the accused appeared to understand and signed the notice presented to
him.
Sgt Vuyo van Rieck
[33]
The following state witness was the
investigating officer in the matter, Sgt Vuyo van Rieck. He was
called to the crime scene by
W/O Rungqu and Sgt Magungwana at
approximately 19h00, where the officers pointed out the deceased,
next to whom lay the accused,
who was handcuffed. Sgt van Rieck
observed a wound over the deceased’s heart. There was also a
small wound on the accused.
He went on to testify, in detail, about
what had been conveyed to him by Ms Maphalane. Furthermore, he
alleged that when he had
attempted to find out what happened from the
accused, the latter merely looked at him; he could not be certain
about whether the
accused heard him properly but assumed that either
he was drunk or he was simply exercising his right to remain silent.
[34]
In the days that followed, Sgt van Rieck
established from staff at the state mortuary that the deceased
sustained three wounds:
one on each breast and one over the heart. He
also returned to the accused while he was being detained at the Fleet
Street police
station in East London so that Sgt van Rieck could
formally charge him. At the time, the accused refused to provide a
statement.
Sgt Nombuliso Nqambi
[35]
Sgt Nombuliso Nqambi testified next. She
indicated that she was summoned to the house at about 20h20 on the
date in question and
took the photographs that appeared in the police
album. In that regard, she confirmed that a lounge or sitting room
and another
room, possibly a study, separated the kitchen from the
garage. Moreover, it was possible to have seen the garage door from
the
kitchen, provided that the inter-leading door was open.
[36]
The defence subsequently submitted a
section 220 admission to the above effect, bringing Sgt Nqambi’s
role in the proceedings
to an end.
Ms Zandile Makitiwana
[37]
The state called Ms Zandile Makitiwana. She
attended the same school as the deceased and renewed her acquaintance
with her in 2008,
after which they became close friends. The deceased
introduced her to the accused, as the former’s boyfriend, in
2009.
[38]
Ms Makitiwana said that the pair had become
married in 2010 and stayed in a flat in Southernwood, East London,
together with their
children. Initially, their relationship was very
good, but tensions emerged over time. A source of friction was their
respective
parenting styles in relation to the deceased’s
daughter, Amanda, born of a prior relationship. Nevertheless, said Ms
Makitiwana,
the pair had usually managed to resolve their
differences.
[39]
To the best of her knowledge, the deceased
was responsible for the payment of the children’s school fees.
The accused took
care of their transport needs and bought them food.
[40]
Ms Makitiwana went on to describe the
deceased’s sources of income. She was initially employed by
Sanlam but subsequently
ventured into the buying and selling of
up-market clothing. This developed into a successful business and
involved trips to China
to obtain supplies. Ms Makitiwana assisted
the deceased by managing orders and modelling the designs. The
deceased would, from
time to time, bring back clothing for the
children, the accused, as well as her domestic worker, Ms Maphalane.
In addition, the
deceased was a member of Ms Makitiwana’s
stokvel
,
which yielded a good revenue over time.
[41]
The divorce was primarily an arrangement
between the parties for purposes of gaining access to pension funds
so that they could
start a business. After the divorce, however, the
pair did not remain together. The accused commuted between East
London and Gqeberha,
where he had a girlfriend. He would stay with
the deceased when in East London, but they never shared a bedroom.
[42]
The accused, said Ms Makitiwana, had on
occasion confided in her that his relationship with the deceased was
not healthy and that
the two of them would often argue. Nevertheless,
it appeared to Ms Makitiwana that the pair was able to resolve their
differences.
She strongly refuted the accused’s plea
explanation to the effect that he had been in an abusive relationship
with the deceased.
[43]
It was Ms Makitiwana’s testimony that
the deceased obtained a protection order against the accused after he
began to assault
and ill-treat her. She admitted that he had obtained
an order against her in turn.
[44]
The death of the deceased had a major
impact on Ms Makitiwana, who described her as a kind and very
sociable person.
[45]
The state closed its case.
Case for the defence
[46]
The defence presented the evidence of the
witnesses described in the paragraphs that follow.
Ms Amanda Mbawu
[47]
The first defence witness was the accused’s
stepdaughter, Ms Amanda Mbawu. The deceased had been her mother. She
stated that
she had met the accused in about 2008, when she was eight
years old. She stayed in a hostel for her primary school years,
before
joining the accused and her mother in Southernwood, and later
Ncerha Village 3, during her high school years. Ms Mbawu described

their relationship as ‘average’. She was close to the
accused, who was like a father to her, whereas her mother was

stricter and placed limits on her social activities. It was Ms
Mbawu’s view that her mother and the accused had shared various

financial responsibilities.
[48]
Ms Mbawu left home after completing her
schooling and moved to Cape Town for her tertiary education. She
maintained her relationship
with the accused. She managed to forgive
him for what happened after having grown in her faith and after
having received support
from her pastor. She benefitted from FAMSA
counselling, too.
[49]
The witness said that she had confronted
the accused about why he killed her mother. He explained that he had
been confused, he
did not know what happened on the day in question.
This made Ms Mbawu angry; the accused’s explanation did not
make sense
to her.
[50]
Ms Mbawu testified that she had never been
particularly close to her mother. She admitted that her mother had
never had much time
for her but, nevertheless, loved and cared for
her. In contrast, she was closer to the accused, who fetched her from
school, took
her to his workplace, and bought items for her. He was a
‘go-between’ when she and her mother clashed.
[51]
She stated that she had been unaware that
her mother and the accused obtained protection orders against each
other. When confronted
by the details of her mother’s death, Ms
Mbawu conceded that the accused killed her mother. She was not of the
view that
his conduct could be described as that of someone who had
been confused at the time.
The accused
[52]
The defence called the accused to testify
on his own behalf. He described how he had met the deceased in 2006.
He was the manager
of a furniture store in Fort Beaufort, and she was
employed by Sanlam. They moved to Gqeberha in 2008 and to East London
in 2009.
The accused said that, initially, their marriage had been
good. It produced two children, and the accused enjoyed a positive
relationship
with his stepdaughter, Ms Mbawu. They eventually bought
a site at Ncerha Village 3 and began construction of their house. The
pace
of construction was hampered, however, by the availability of
capital, leading the couple to agree on a plan to divorce. This would

allow them to draw down on their pension funds and to use the
proceeds to complete the house and to start a business. They would

then re-marry.
[53]
The divorce went ahead in 2014. As fate
would have it, the deceased lost her employment over this time,
compelling the couple to
secure further loans to fund construction
costs. They were finally able to take occupation of the house in late
2017.
[54]
Problems began soon afterwards. The couple
began to fight more frequently, resulting in periods of little or no
communication between
them. They obtained protection orders against
each other and the deceased, in due course, moved out of the house to
stay with her
parents in Mdantsane. The accused described how, on a
particular occasion, the deceased had returned to the house and
ripped up
the accused’s clothing and broken his watch. On
another occasion, the accused came home to discover that the deceased
had
forced open the doors to various rooms and removed furniture and
the jacuzzi.
[55]
The accused denied that he had ever
physically abused the deceased. He said that they had both gone to
the Magistrates’ Court
on numerous occasions to deal with
alleged infringements of the orders. He was eventually persuaded by a
magistrate to allow the
deceased to move back to the house in late
2019 but they slept in different bedrooms. They led entirely separate
lives, without
meaningful interaction. The deceased would insult the
accused if ever they had any form of contact. Throughout this time,
the couple,
despite their considerable differences, continued to
fulfil their responsibilities towards their children.
[56]
Over this period, the accused started a
relationship with his girlfriend. He admitted, in testimony, that he
had been surprised
to learn from Ms Mbawu’s evidence that the
deceased, too, started an extra-marital relationship.
[57]
Turning to the day of the incident itself,
the accused described how he had planned to cook
potjiekos
.
He bought
smileys
,
gathered firewood, and commenced cooking inside the garage. The
accused entered the main house to go to his bedroom from time
to
time, always locking the door behind him when he exited and placing
the key next to those for his motor vehicle, on top of a
refrigerator
that stood in the passage. He poured himself a tot of gin and
listened to music.
[58]
At some point, the accused went inside but
was unable to find the key to his bedroom. It was not on top of the
refrigerator. He
concluded that the deceased had taken it, especially
considering previous incidents when she entered his bedroom without
his permission.
The accused found the deceased in the kitchen with
the domestic worker, busy cooking. She was drinking, too. He asked Ms
Maphalane
to leave the kitchen and asked the deceased the whereabouts
of the key. She turned and looked at him before retorting, ‘Don’t

ask me sh*t!’. He became angry and an argument ensued. The
accused testified that he remembers nothing of what happened after

that, only returning to full consciousness the next morning, when he
found himself in a holding cell at the police station.
[59]
The accused stated that he had been unable
to understand what happened. He learnt of the deceased’s
passing from a police
officer. This was confirmed by family members
when they visited him; they told him that he had killed her. He was
emphatic that
he had no recollection of the incident.
[60]
Mr Pikoli subsequently informed him that he
had gone to the house, seen the body of the deceased, and spoken to
him in the back
of the police van. When Mr Pikoli asked the accused
what had happened, the latter answered that they should go and eat
the meat,
it was cooked. When Mr Pikoli enquired further, the accused
merely laughed, causing onlookers in the vicinity to grow angry. The

accused was adamant, however, that he could not remember the
conversation with Mr Pikoli and could not remember having been in
the
back of the police van.
[61]
The accused explained that he had been
sober when he searched for his bedroom key. He consumed only a single
tot of gin and was
planning to share the meat and drink with Mr
Pikoli later, in Amalinda. He said that he could not recall whether
the doors of the
house were locked, but he usually locked the door to
his bedroom. He would have closed the door to the garage, while
cooking, to
keep the smoke out of the adjoining study.
[62]
When asked about how he felt about the
passing of his wife, the accused admitted that he could not
comprehend how he could have
killed her; he always hoped that their
relationship would improve. He had become alienated from both the
deceased’s as well
as his own family. The accused confirmed
that he had written letters to the families and to his friends,
including Mr Pikoli, apologising
for what happened. He accepted that
he was responsible for the death but did not know how it could have
occurred.
Reopening
of state’s case
[63]
The state subsequently applied to reopen
its case for the admission of an expert report compiled by Ms Raylene
Flanagan. This comprised
a psychological assessment of the accused.
The application was not opposed. The contents of the report were
admitted in terms of
section 220 of the CPA, but not the assessment
itself or the conclusions reached. In that regard, the accused denied
that he was
a person who lost his temper easily but conceded that the
conduct of the deceased on the date of the incident had angered him.
He said that the killing of the deceased had been a spontaneous
reaction.
Continuation of case
for the defence
[64]
The defence resumed its case and called its
next witness.
Mr Luthando Pikoli
[65]
Mr Pikoli indicated that he had known both
the deceased and the accused for several years. On the date of the
incident, he and the
accused were in telephonic contact with each
other about meeting up after the latter finished cooking
smileys
.
Before they could do so, however, Mr Pikoli received a call from his
ex-girlfriend to say that the accused had stabbed the deceased.
He
left immediately for the accused’s home and came across members
of the community gathered outside the premises. He introduced
himself
to the police officers who were present and was taken to the accused,
who was in the back of a police van. Upon seeing
Mr Pikoli, the
accused allegedly said, ‘The meat has been cooked, let’s
go.’ When Mr Pikoli asked him whether
he knew where he was, the
accused said that he was at home. To this, Mr Pikoli pointed out that
he was in the back of a police
van, at which the accused laughed,
asking why that would be so. Mr Pikoli explained to him that he had
killed the deceased. The
accused responded by asking why he would do
so, before speaking no further.
[66]
Mr Pikoli described the accused as having
been confused. He could not comment on his state of sobriety but
remarked that a tot of
gin would not have had any impact on the
accused.
[67]
Shortly afterwards, the father of the
deceased, Mr Magengelele, arrived. He went with Mr Pikoli to the
police van and repeatedly
asked the accused what had happened. The
accused, however, just looked at Mr Magengelele and said nothing. On
the following day,
Mr Pikoli visited the accused at the Fleet Street
police station in the company of Mr Magengelele and others. A police
officer
informed them that he had been unable to obtain a statement
from the accused because he was not ‘in his right senses’.

He, nevertheless, took them to the accused, who asked the whereabouts
of the deceased before remaining silent. Mr Pikoli said that
the
accused had been sober but still appeared to have been confused.
[68]
The defence closed its case.
Reopening of defence’s
case
[69]
The defence later applied to re-open its
case for the procurement and possible admission of an additional
expert report regarding
the psychological assessment of the accused.
The application was not opposed.
Mr Iain Reid
[70]
Upon the resumption of proceedings, the
court heard testimony from a clinical psychologist, Mr Iain Reid. He
stated that he had
been instructed to provide opinion evidence
regarding whether the accused was able to appreciate the unlawfulness
of his conduct
and to act accordingly. He confirmed his finding that
this had indeed been so.
Issue to be decided
[71]
The accused, at the commencement of the
trial, indicated in terms of section 115(1) of the CPA that the basis
of his defence was
non-pathological criminal incapacity (automatism),
as envisaged under section 78. Whether the state, at the end of the
trial, successfully
rebutted such defence is the key issue for
determination.
[72]
A secondary issue is whether the offence
was premeditated. This is more relevant to possible sentencing
proceedings than the merits
of the matter, but the evidence in
relation thereto has a bearing on the defence, as shall be explained.
[73]
It is necessary, at this stage, to consider
the principles that apply.
Legal framework
[74]
The provisions of section 78 of the CPA
deal with mental illness or intellectual disability and the impact
thereof on criminal responsibility.
[75]
More particularly, sub-section (1) provides
that a person who, at the time of committing an offence, suffered
from a mental illness
or intellectual disability that made him or her
incapable of appreciating the wrongfulness thereof or of acting in
accordance with
such appreciation, shall not be criminally
responsible for the offence in question.
[76]
The provisions of sub-section (2) address
the procedure to be followed when it is alleged that the accused is
not criminally responsible
for the offence charged. To that effect, a
court shall, where there is an allegation or appearance of a mental
illness or intellectual
disability, direct that the matter be
enquired into and reported on by the panel described in section
79(1)(b) if the accused has
been charged with a serious offence such
as murder. In the absence of any allegation or appearance of a mental
illness or intellectual
disability, the court has a discretion
whether to make the directive mentioned. That is precisely the
situation here.
[77]
In the present matter, the defence
indicated at the commencement of the trial that it was not yet ready
for an expert report to
be compiled in view of the potential or
actual involvement of several witnesses in the proceedings. The court
was satisfied that
no prejudice would be caused to the accused by
allowing the trial to proceed. In due course, two independent
psychological assessments
were conducted, resulting in expert reports
that were both admitted to the record, and which require
consideration.
[78]
Du Toit (et al) observes, with reference to
other writers, that the defence of non-pathological criminal
incapacity means that:
‘
if
an accused at the time of committing the unlawful act, and as a
result of a cause
unrelated
to mental illness
,
either was unable to distinguish between right and wrong… or
was unable to act in accordance with the distinction between
right
and wrong, he must be acquitted on the basis of lack of criminal
capacity.’
[1]
[79]
The learned writer went on to remark that
the defence does not displace the onus, which continues to be borne
by the state. The
situation changes, however, when the accused relies
on a pathological disturbance of his or her faculties.
[80]
In
S
v Calitz
,
[2]
the erstwhile Appellate Division, per Eksteen JA, held that:
‘
Where
the court has to do with a mental disease or mental defect in the
form of a pathological disturbance at the time of a commission
of a
crime, psychiatric evidence fulfils an indispensable function, but
where the matter concerns a non-pathological condition
at the time of
the commission of a crime, psychiatric evidence does not fulfil such
an indispensable function because the trial
court is itself in a
position, on the basis of the accepted facts, to decide whether the
defence raised has on all the evidence
been made out; and that
applies also in respect of the concept of temporary mental
incapacity.’
[3]
[81]
The
Appellate Division addressed the subject at about the same time, too,
in
S
v Wiid
,
[4]
where Goldstone JA affirmed the principle that the onus rests on the
state to rebut the defence. He emphasised, nevertheless, that
a
foundation must be laid in the evidence for the defence to be raised
successfully. If there was a reasonable doubt that the accused
had
criminal capacity at the time of the commission of the offence, then
he or she should be given the benefit of the doubt.
[5]
[82]
The defence in the present matter relied
specifically on the defence of sane automatism. Although no clear
distinction was made
in argument, the court understands this as a
sub-category of the main defence, viz. non-pathological criminal
incapacity.
[83]
The
Supreme Court of Appeal dealt with the concept in
S
v Humphreys
,
[6]
where Brand JA described it as follows:
‘
If
the appellant was indeed not conscious of his actions, the defence
available to him would be that he did not act voluntarily.
Since it
is a trite principle of our law that a voluntary act is an essential
element of criminal responsibility, the appellant
would indeed be
entitled to an acquittal if his actions were attributable to
mechanical behaviour or muscular movements of which
he was unaware
and over which he had no control. Since this type of involuntary
behaviour is more reminiscent of the activities
of an automaton
rather than a human being, the defence has become known as one of
“automatism”…’
[7]
[84]
The
principles that apply to the defence of non-pathological criminal
incapacity, in general, are applicable to sane automatism.
In
S
v Potgieter
,
[8]
the erstwhile Appellate Division held, per Kumleben JA, that the
reliability and truthfulness of the accused were crucial factors
in
laying a factual foundation for the defence in question.
[9]
The Appellate Division held further, per Scott JA, in
S
v Cunningham
,
[10]
that an onus rests on the state to establish the voluntariness of the
accused’s conduct. In doing so, the state is assisted
by the
natural inference that, in the absence of exceptional circumstances,
a sane person who engages in conduct which would ordinarily
give rise
to criminal liability does so consciously and voluntarily. The
learned judge went on to say that:
‘
Common
sense dictates that before this inference will be disturbed a proper
basis must be laid which is sufficiently cogent and
compelling to
raise a reasonable doubt as to the voluntary nature of the alleged
actus
reus
and, if involuntary, that this was attributable to some cause other
than mental pathology.’
[11]
[85]
The relevant provisions of the CPA and the
relevant principles arising from the case law, as discussed above,
constitute the basic
legal framework within which the present matter
must be considered. This will be done in the paragraphs that follow.
Evaluation of
witnesses
[86]
The key state witness was Ms Maphalane. As
a former employee of the deceased, with whom she had enjoyed good
relations, it would
be reasonable to assume that Ms Maphalane was
prone to an inherent bias against the accused. He was the cause of
her loss of employment
and the ending of a close relationship that
she enjoyed with the deceased’s children. Nevertheless, she was
a credible witness
and there were few contradictions in her
testimony. Other witnesses, particularly Sgt Magungwana and W/O
Rungqu, corroborated material
aspects thereof, especially regarding
the accused’s having locked the doors of the house prior to the
incident and having
destroyed his cellphone as well as that of the
deceased. Ms Maphalane was a reliable witness, too, because she had
been in the
immediate vicinity at the time of the incident; she
witnessed the commencement of the altercation, heard the commotion
from the
deceased’s bedroom, and witnessed the outcome. Despite
intense cross-examination, Ms Maphalane was cogent and consistent in

her explanation of what happened.
[87]
The accused was also reliable, overall. He
was a satisfactory witness and did not dispute, in general, the chain
of events that
led to the altercation, but maintained throughout his
testimony that he could not remember what had happened during the
altercation
itself or afterwards. His credibility, however, was
undermined by the testimonies of other witnesses. In that regard, Mr
Magengelele
was adamant that the accused had been drunk when he
confronted him in the back of the police van; although the police
officers
did not go so far as confirming this, they all stated that
they had smelt alcohol. Ms Mbawu said that the accused’s
assertion
that he had been confused at the time had not made sense.
[88]
The only witness to have supported the
accused’s version was Mr Pikoli. He testified that the accused
had seemed confused
when he spoke to him, both in the back of the
police van and at the police station on the following day. As counsel
for the state
suggested, however, Mr Pikoli’s bias in favour of
the accused, a close friend, would have eroded his credibility
considerably.
Discussion
[89]
The court will, at this stage, proceed to
deal with the key issue for determination, viz. whether the state has
successfully rebutted
the defence of non-pathological criminal
incapacity. It will thereafter deal with the issue of premeditation.
As already mentioned,
the issues are intertwined to some degree.
Rebuttal of defence
[90]
Mindful of the authorities to which the
court referred, earlier, it must be reiterated that the state bore
the onus to rebut the
defence of non-pathological criminal incapacity
(automatism). There are several areas of focus that arise in relation
thereto from
the evidence.
[91]
The first area of focus pertains to the
conduct of the accused prior to the incident. There was nothing
untoward in his cooking
of the
smileys
in the garage or in his consumption of a tot of gin, which, as Mr
Pikoli remarked, would have had no impact on him. It was, however,

the accused’s subsequent entering the house and locking of the
doors, as observed by Ms Maphalane, that suggests that he
anticipated
the confrontation that would follow shortly thereafter and introduces
the element of premeditation. The children confirmed
that the accused
had locked the doors, before and after instructing them to go and
play. The police officers confirmed that Ms
Maphalane had led them to
a locked house after the incident. The accused never denied this,
saying only that he could not recall
whether he had locked the doors;
he admitted that he would have at least closed the door to the garage
to keep the smoke out of
the adjoining study.
[92]
The reasonable inference to be drawn is not
so much that the accused locked the doors because he wished to
prevent the deceased
from escaping as that he did not wish the
children to see what would occur when he confronted the deceased, as
he did. Furthermore,
he instructed Ms Maphalane to leave the kitchen
and go to her bedroom. She commented, in testimony, that this had
seemed strange;
he and the deceased never spoke to each other. Again,
this invites the inference of premeditation, that he anticipated and
indeed
planned a confrontation; the accused did not wish Ms Maphalane
to be present when this happened.
[93]
The second area of focus concerns his
conduct at the start of and during the incident. The accused
insinuated that the deceased
had taken his bedroom key. He admitted,
in testimony, that he had entered and left his bedroom at various
times while cooking,
returning the key to the top of the
refrigerator. Access to his bedroom had clearly been a sensitive
issue between the couple,
especially after previous incidents when
the deceased had allegedly destroyed or damaged personal items of the
accused. It is implausible,
therefore, that the deceased would have
risked an altercation with the accused by removing the key from the
top of the refrigerator.
It is also implausible that Ms Maphalane
would have done so; she heard the commotion that ensued in the
kitchen when the accused
enquired about the whereabouts of the key
and she would surely have indicated straight away that she knew where
it was, to protect
the deceased, with whom she enjoyed a good
relationship. The accused used the issue of the missing key as a
pretext for the confrontation
that followed.
[94]
There are other troubling aspects to the
accused’s conduct at the start of and during the incident. When
Ms Maphalane called
out, saying that she would look for the key, the
accused responded immediately, saying that he had ordered her into
her bedroom.
He also entered the kitchen unarmed, needing to open a
drawer and remove a knife before inflicting the wounds. He then
dragged
the deceased to her bedroom and demanded to know from her why
she went around sleeping with men from Gauteng. This was not the
conduct of a person who was unaware of what he was doing. The
incident was not a sudden, involuntary reaction; it was an
altercation
that began in the kitchen, involved the accused’s
intelligible interaction with both the deceased and Ms Maphalane and
the
search for a weapon, and ended in the bedroom. It cannot be said
that the accused, at the time, had no appreciation for or control

over his actions.
[95]
The third area of focus was his conduct
immediately after the incident. He destroyed his cellphone and that
of the deceased, as
witnessed by Ms Maphalane and corroborated by the
police officers. Although the futility of such actions is obvious, it
would have
hampered efforts on the part of Ms Maphalane or anyone
else to contact the authorities. The accused, moreover, ordered Ms
Maphalane
to throw her cellphone away, but not before she managed to
hide it under the bed. He subsequently entered her bedroom, closed
the
window, closed the curtains, and closed the door. This suggests
an attempt to threaten or intimidate her, to limit her response
to
what had just happened, to frustrate any steps on her part to seek
help. Upon Ms Maphalane’s exiting the house, the accused,

importantly, locked the door behind her before returning to the
bedroom and lying down next to the deceased. This cannot, in any
way,
be described as involuntary behaviour.
[96]
Regarding the small laceration on the
accused’s chest, there was no evidence at all that the deceased
had been in possession
of a weapon or had wrested control of the
knife from the accused and stabbed him with it. Ms Maphalane was
adamant that she had
not seen any injuries on the accused immediately
after the incident. Dr van Niekerk, moreover, was unable to exclude
the possibility
that the laceration had been self-inflicted. The
wound was undoubtedly intended to suggest, clumsily, that there had
been a violent
struggle in which the deceased had attacked and
wounded the accused. If anything, it serves merely to demonstrate
that the accused
was very much aware of what was happening around him
at the time.
[97]
A further aspect to be mentioned is the
accused’s written apology to the family of the deceased. There
was no indication at
all, as counsel for the state pointed out, of
automatism or anything else at the time that might have given rise to
non-pathological
criminal incapacity. This would have been expected
in the accused’s letters if such circumstances had been
present.
[98]
Concerning
the deceased’s possible provocation of the accused, Ms
Maphalane testified that she never heard anything to that
effect.
Even if there had been provocation, as the accused asserted, in terms
of which the deceased had retorted ‘Don’t
ask me sh*t!’
to his asking the whereabouts of the key, then this would not have
justified his resulting conduct. The Supreme
Court of Appeal, in
S
v Eadie
,
[12]
clearly rejected the defence of provocation; a person can only claim
to lack self-control when he or she is acting in a state of

automatism.
[99]
The only remaining evidence to be
considered, in relation to the question of whether the state has
rebutted the defence of non-pathological
criminal incapacity, are the
expert reports of the clinical psychologists. These were admitted as
evidence and were, in the end,
uncontested. To that effect, Ms
Flanagan concluded,
inter alia
,
as follows:
‘
The
sequelae for automatic behaviour includes the person acting in horror
after an offence and should attempt looking for assistance,
they
should have amnesia for the period of the offence (and not for
certain parts) but should have recollection of the events preceding

and subsequent events.
’
[13]
[100]
The expert went on to observe:
‘
[Mr
Methula] stated that he does not have any recollection of stabbing
the deceased, but when he was confronted with the facts of
the case,
he could recall speaking to the helper, by telling her to go to her
room, this was during the offence, he was also unable
to recall
subsequent events after the offence, he could only recall what
occurred the following day and this is not normally the
sequelae for
automatism.’
[101]
It is clear that Ms Flanagan found no basis
for the defence raised. The same conclusion was reached by Mr Reid,
who remarked:
‘
The
following facts do not support the presence of a sane automatism. 1.)
There was ongoing mutual provocation in the relationship,
and her
swearing at him on the day does not appear to constitute an extreme,
out of the ordinary provocation. 2.) He was found
by police, asleep
and snoring next to his wife’s body. In the case of automatism,
the perpetrator would be in a state of
high emotional arousal and
would typically be shocked by their actions and attempt to seek help
for the victim. 3.) Automatism
is generally characterised by a brief
dissociative period where the period of amnesia is of short duration
and for the incident
only. The perpetrator is typically of clear
consciousness prior to and immediately after their actions. Mr
Methula reports a blanket
amnesia lasting from just before his wife’s
murder until he woke up the following morning (approximately 12
hours). He is
unable to recall been taken to Frere Hospital for
stitches, interacting verbally with others or been interviewed at the
police
station. Such an extended period of amnesia is not consistent
with automatism.’
[102]
The expert continued, saying that there
were insufficient grounds upon which to explain the accused’s
actions in terms of
sane automatism. He concluded by saying that, in
his opinion, the accused was able to appreciate the wrongfulness of
his actions
at the time and to act in accordance with such
appreciation.
[103]
In
S
v Hadebe and others
,
[14]
the Supreme Court of Appeal, per Marais JA, referred to the decision
in Moshephi and others v R,
[15]
where the court described the correct approach to be followed in
relation to the evaluation of evidence.
‘
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 aid
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.’
[16]
[104]
The
principles, above, were reiterated in
S
v Trainor
,
[17]
where the Supreme Court of Appeal, per Navsa JA, emphasized that a
conspectus of all the evidence is required.
[18]
[105]
If the court, in the present matter,
considers properly the totality of evidence presented, including the
expert reports, then it
is satisfied that the accused was fully in
control of his actions at the time of the incident. He was able to
distinguish between
right and wrong and was able, but failed, to act
in accordance therewith. There was, ultimately, nothing in the
evidence for the
defence to demonstrate that the state had failed to
discharge the onus.
[106]
The remaining issue for determination is
whether the offence was premeditated.
Premeditation
[107]
As
a starting point, it is trite that there must be evidence that the
offence was premeditated, as emphasised by the Supreme Court
of
Appeal in
S
v Makatu
,
[19]
per Lewis JA. Subsequently, in
S
v Raath
,
[20]
Bozalek J, writing for a full bench, dealt as follows with the
subject of premeditation:
‘
Planning
and premeditation have long been recognised as aggravating factors in
the case of murder… However, there must be
evidence that the
murder was indeed premeditated or planned… The concept of a
planned or premeditated murder is not statutorily
defined. We were
not referred to, and nor was I able to find, any authoritative
pronouncement in our case law concerning this concept.
By and large
it would seem that the question of whether a murder was planned or
premeditated has been dealt with by the court on
a casuistic basis.
The Concise Oxford English Dictionary 10ed, revised, gives the
meaning of premeditate as “to think out
or plan beforehand”
whilst “to plan” is given as meaning “to decide on,
arrange in advance, make preparations
for an anticipated event or
time”. Clearly the concept suggests a deliberate weighing-up of
the proposed criminal conduct
as opposed to the commission of the
crime on the spur of the moment or in unexpected circumstances. There
is, however, a broad
continuum between the two poles of a murder
committed in the heat of the moment and a murder which may have been
conceived and
planned over months or even years before its execution.
In my view only an examination of all the circumstances surrounding
any
particular murder, including not least the accused’s state
of mind, will allow one to arrive at a conclusion as to whether
a
particular murder is “planned or premeditated”. In such
an evaluation the period of time between the accused forming
the
intent to commit the murder and carrying out this intention is
obviously of cardinal importance but, equally, does not at some

arbitrary point, provide a ready-made answer to the question of
whether the murder was “planned or premeditated”.’
[21]
[108]
Importantly,
the Supreme Court of Appeal, in
S
v Kekana
,
[22]
addressed the period between forming the intention to murder and the
carrying out of such intention. It found, per Mathopo AJA,
that time
was not the only consideration because even a few minutes were enough
to carry out a premeditated action.
[23]
[109]
Turning to the present matter, the state
referred to the sequence of events on the day of the incident itself
to contend that the
accused’s murder of the deceased had been
premeditated. The accused’s entering the house and locking the
doors, instructing
the children to continue playing outside, and
ordering Ms Maphalane to leave the kitchen were certainly indicative
of his anticipation
of the confrontation with the deceased. His
insinuation that she had taken his bedroom key was, moreover,
indicative of a planned
confrontation. But the court is not convinced
that the evidence goes so far as to demonstrate that the accused
planned to kill
her. Why do so when his children were in the nearby
vicinity? Why do so when Ms Maphalane was in the house at the same
time?
[110]
Other inferences can be drawn from the
evidence. The accused may, on the one hand, simply have wished to
deal with the rumours of
the deceased’s relationships with
other men and to bring these out into the open. He may, on the other
hand, simply have
been spoiling for a fight. The premeditated murder
of the deceased is not the only available inference.
[111]
Furthermore, as counsel for the defence
intimated, the accused confronted the deceased unarmed. It was only
after her retort, ‘Don’t
ask me sh*t!’ that he
struck her and searched for a weapon. The most likely inference to be
drawn is that the deceased’s
retort so enraged the accused that
it led to the conduct that followed. As already remarked, however,
this does not, in the absence
of further evidence, serve as the basis
for the defence relied upon.
Conclusion
[112]
In the circumstances, the court is
persuaded that the accused unlawfully and intentionally killed Ms
Thandi Mbawu. The court finds,
therefore, that the accused is guilty
of the offence of murder. There is insufficient evidence, however, to
find that the murder
was premeditated.
JGA LAING
JUDGE OF THE HIGH
COURT
APPEARANCE
For
the State:
Adv
S Mtsila
Instructed
by:
Director
of Public Prosecutions
Makhanda
046 602
3000
For
the Accused:
Adv
N Dyantyi
Instructed
by:
Legal
Aid South Africa
Qonce
043
604 6600
Date
of delivery of judgment:
29
April 2024
[1]
Du
Toit (et al),
Du
Toit: Commentary on the
Criminal Procedure Act
(Jutastat
e-publications, RS 61, 2018), at ch13-p32. Emphasis added.
[2]
1990
(1) SACR 119 (A).
[3]
At
127A-C; see
,
too, the translation provided in the headnote.
[4]
1990
(1) SACR 561 (A).
[5]
At
564A-G; see, too, the translation provided in the headnote. The
principles were confirmed in
S
v Kalogoropoulous
1993 (1) SACR 12 (A).
[6]
2013
(2) SACR 1
(SCA).
[7]
At
paragraph [8].
[8]
1994
(1) SACR 61 (A).
[9]
At
73B.
[10]
1996
(1) SACR 631 (A).
[11]
At
635I-J and 636A.
[12]
2002
(1) SACR 663 (SCA).
[13]
Sic.
Emphasis added by Ms Flanagan.
[14]
1998
(1) SACR 422 (SCA).
[15]
(1980-1984)
LAC 57.
[16]
At
59F-H.
[17]
2003
(1) SACR 35 (SCA).
[18]
At
paragraph [9].
[19]
2006
(2) SACR 582
(SCA), at paragraphs [12] to [14].
[20]
2009
(2) SACR 46 (C).
[21]
At
paragraph [16].
[22]
2014
JDR 2139 (SCA).
[23]
At
paragraph [13].