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IN THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division, Kimberley)
Saakno / Case number: KS 19/24
In the matter of:
THE STATE
and
J[...] J[...] L[...] ACCUSED
Coram: Van Tonder, AJ
JUDGMENT
VAN TONDER, AJ
1. The accuse d is indicted for eight (8) charges:
1.1. Murder;
1.2. Assault with intent to do grievous bodily harm;
1.3. Assault with intent to do grievous bodily harm;
1.4. Assault with intent to do grievous bodily harm;
1.5. Assault with intent to do grievous bodily harm ;
1.6. Assault with intent to do grievous bodily harm; 1:1>1r1
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1.7. Assault with intent to do grievous bodily harm;
1.8. Murder read with the provision of section 5 1(1) of the C riminal
Law Amendment Act, 105 of 1997 ;
2. Charges 1, 2 and 3 arise from the events of the 13th of February 2022, at
the Chila Mati Tavern in Galeshewe.
3. Charge 4 arises from the events of the 28th of July 2022, at the
complainant, Jaynal Ahmed’s tuck shop in Galeshewe.
4. The charge of assault with intent to do grievous bodily harm on count fi ve
(5) in the Indictment was withdrawn by the state prosecutor during the
inception of the trial.
5. Charges 6, 7 and 8, arise from the events of the 29th of April 2023, that
took place in Galeshewe.
6. The accused pleaded as follows:
6.1. Not guilty on Count 1, which is the murder of Brandon Anthony
Brooker . His version is that he acted in self -defence.
6.2. On count 2, the accused proffered a plea of guilty in terms of
section 112(2) of the Criminal Procedure Act, 51 of 1977(CPA) ,
and the written statement was handed in as Exhibit “A”.
6.3. The State did not accept the factual basis of the plea, as set out in
Exhibit “A”, as the accused allege d that the complainant (Dion
Kabelo Mongale ) had asked him why he had stabbed the
deceased and hit him once with an open hand , and as a result of
this assault and out of anger and without thinking straight, the
accused took a beer bottle and broke and stabbed Mongale a
number of times on his body. The accused confirmed that he was
advised that as Mongale was not armed with anything when he
stabbed him, the accused had exceeded the bounds of self -
defence.
6.4. Not guilty to Count 3. In Exhibit “A”, the accused state d that the
complainant (Jessica Ngeza) had jumped between him and the
complainant in Count 2 and was Ms Ngeza injured by a cut on her
finger because of that. He never intended to assault her.
6.5. Not guilty to Count 4. The accused’s evidence was that the
complainant (Jaynal Ahmed) had attacked him with a knife and
that he picked up stones and threw at the complainant in an act of
self-defence.
6.6. To Count 6, the accused pleaded not guilty. During his evidence
he testified that the complainant (Maggie Barends) had thrown
bottles and stones at him and that his actions in reply, amounted
to self -defence.
6.7. To Count 7, he pleaded not guilty.
6.8. In respect of Count 8, t he accused proffered a plea of guilty by
means of a second written statement in terms of section 112(2) of
the CPA, and the written statement was handed in as Exhibit “C” .
6.9. Therein he stated that he had fought with the deceased’s brother
(Peter) , where after he went home and got a knife and when he
returned, Peter saw the knife and ran away . Brandon Shomolile
also wanted to fight the accused, wherefore the accused chased
Brandon Shomolile (the complainant in Count 7) with the knife,
and Brandon Shomolile ran away.
6.10. The accused admitted that he saw the deceased (T[...] O[...] )
standing by his home gate, as the accused was leaving going to
his house . The accused stated that out of anger he took out the
knife and s tabbed the deceased once on the chest . The accused
admitted that his actions were intentional and unlawful , and stated
that he had realised that as a result of his actions of stabbing the
deceased on his chest, the deceased might sustain serious
injuries that might have results in his death, which was what
happened.
6.11. The State did not accept the factual basis as it is alleged in the
indictment that the accused acted with premeditation.
7. In exhibit “C”, the accused also made the following admissions in terms of
Section 220 of the CPA, in respect of Count 8, as contained in exhibit “C”:
7.1. It is a dmitted in respect of Count 8, that the identity of the
deceased is T[...] O[...] R[...] , as identified by K[...] L[...] R[...] .
7.2. The postmortem report and its content, as compiled by Dr
Lemaine Fouche, is admitted as true and correct . The cause of
death is therefore admitted as stab to the chest.
7.3. It is admitted that the body of the deceased in respect of Count 8
did not sustain further injuries until it reached the mortuary as set
out in the conveyancing statement completed by Shirley Say
7.4. The photo album, compiled by Warrant Officer Noncedo Phonica
Zwazi i s admitted as the true depiction of the crime scene as well
as the sketch plan consisting of 4 photos.
7.5. It is furthermore admitted that the photo album consisting of 12
photos, as compiled by Sergeant Dibueng Molly Mohitlhi is a true
depiction of the p ostmortem of the deceased in respect of Count
8.
8. The following exhibits were handed in during the trial:
8.1. Exhibit “B” was the medical report by Doctor Molise in relation to
the injuries of the complainant in Count 2, Dion Kabelo Mongale .
This complainant had an 8 -cm laceration on the left side of the
face and another laceration on his forehead.
8.2. Exhibit “D” was the p ostmortem in relation to the cause of death of
the deceased in Count 8. The deceased died from a stab wound
to the chest.
8.3. Exhibit “E” was the photo -album of the scene in relation to Count
1.
8.4. Exhibit “F” was the photo -album of the postmortem on the body of
the deceased in Count 1.
8.5. Exhibit “G” was the psychiatric report of the accused. This was
handed in by agreement and the defence admitted thereby that
the accused was able to understand the proceedi ngs and to set
up a defence. The version of the accused was never that he could
not appreciate between right and wrong at the time of the
incidents.
8.6. Exhibit “H” was a list of admissions in terms of section 220 of the
CPA. Apart from admitting to certain exhibits being handed up, the
accused further admitted the identity of the deceased in Count 1
and that the body of the deceased did not incur further injuries
after being transported form the scene and stored until the time
the postmortem was conducted.
8.7. Exhibit “J” was the post -mortem report in relation to Count 1. The
deceased had two incised wounds to his back. He died because
of a bilateral haemopneumothor ax, caused by the injuries on his
back, which penetrated his lungs.
8.8. Exhibit “K” was the photo -album of the scene of the offence in
relation to Count 8.
8.9. Exhibit “J” was the photo -album of the post -mortem on the body of
the deceased in Count 8.
8.10. The medical report in relation to the complainant in Count 4 was
handed in as Exhibit “M”. According to the report, the complainant
had an injury to his right index finger.
9. The accused made the following admissions in terms of Section 220 of the
CPA, as contained in exhibit H:
9.1. In respect of Count 1, i t is admitted that the identity of the
deceased is Brandon Anthony Brooker .
9.2. It is admitted that the deceased died on the scene near Chila Mati
tavern, Sobantu, Galeshewe. I t is further admitted that the body of
the deceased did not sustain any further injuries during the
transportation thereof until the postmortem was conducted on 14
February 2022 .
9.3. The postmortem report and its content , as compiled by Dr.
Tebogo Charles Kanaomang, is admitted as true and correct and
was handed in as Exhibit “J”. The cause of death is therefore
admitted as bilateral haemopneumothorax, which is the collection
of air and blood around the lungs , causing it to collapse , caused
by stab wounds on the back .
9.4. The album , the key there to and the point s marked out on it of the
scene at Chila Mati tavern, Paballo Street, Sobantu, a s
reconstructed and compiled by Warrant Officer Jos iah Seleke, i s
admitted as true and correct and was handed in as Exhibit “K”.
9.5. The photo album, the key thereto and the points marked out on it
of postmortem examination on the body of the deceased ,
compiled by Warrant Officer B Mthulu i s admitted as true and
correct and was handed in as Exhibit “L”.
9.6. In respect of Count 4 the medico -legal examination on the
complainant , conducted on 28 July 2022 , is admitted as true and
correct and was handed in as Exhibit “M”.
10. The trial proceeded before me on the 18th of November 2024 until the 22nd
of November 202 4, on which day the matter was postponed until the week
starting on Monday the 2 7th of January 2025.
THE STATE ’S CASE
11. The State’ s case is predicated on the following evidence:
12. The first witness was the complainant in count 2, Mr. D ion Kabelo
Mongale. He testified that he knows the accused well. At the time of the
incident, he was at a tavern around 02h00 at night. There was a fighting
between his friends, and he stopped them. The accused was involved in
the fighting.
13. Thereafter he saw the accused chasing the deceased in Count 1 and
stabbing him from behind. The accused had a knife which the witness
referred to as an “ Okapi ”. The deceased fell inside the tavern but was
pushed outside by other people. He testified that the deceased was not
part of the fighting and that he did noth ing to the accused.
14. Mr. Mongale confronted the accused, who swore at him. The accused
then broke a bottle and stabbed the complainant three times. When he
wanted to stab him the fourth time, the complainant in Count 3 (Ms Ngeza)
pushed him away. Mr Mo ngale went to open a case the next morning.
15. It was put to Mr Mongale during cross -examination that the accused was
not part of the fight. He went to the shop and when he returned, the
deceased approached him and wanted to rob him. The witness denied t his
version and remained adamant that the accused chased the deceased
and stabbed him from behind.
16. The witness testified again that the deceased did not do anything to the
accused when it was put to the witness that the deceased was pushed by
the accu sed.
17. It was put to Mr. Mongale that the accused used the knife of the deceased
to stab the latter. The witness responded by saying that the knife was an
Okapi which be longed to the accused.
18. Mr. Mongale also denied that he had hit the accused with an open hand ,
as was alleged by th e accused .
19. The second witness was the complainant in count 3, Ms Jessica Ngeza.
20. She confirmed that the accused chased the deceased in Count 1 and
stabbed him from behind with an Okapi. She testified that Mr. Mongale
intervened, where the accused broke a bottle and stabbed Mr. Mongale
three times. When the accused wanted to stab Mr. Mo ngale a fourth time,
she intervened, and the accused stabbed her on the hand.
21. She further explained that when the accused wanted to stab Mr. Mongale
the fourth time, she was standing in the middle of them and told them to
stop.
22. The third witness was the complainant in Count 7, Mr. Brandon Shomolile.
23. He testified that he was friends with the accused.
24. On the 29th of April 2023 , around 14h00, the accused was playing a
gambling game with other people. The accused lost the game and
demanded his money back. Once of the players, Peter, did not want to
give the accused his money back. The accused grabbed Peter by his
clothing on the chest. Peter cried because he wanted the accused to let
go of him.
25. The accused got into a fight with other people also. The witness decided
to intervene and told the accused to rather fight with him. The accused hit
one “ Pepe ’ with his fist on the che st.
26. The deceased in Count 8 was standing at their gate and the accused
wanted to slap him. Mr. Shomolile stopped the accused from doing it. The
accused then instructed his sister to go and fetch a knife. She refused to
do it. Mr. Shomolile then walked with the accused’s sister, during which
time the accused ran past them to their house. He came out and ran to
another residence on the other side of the street. When the accused came
out, he had a knife in his hand and came straight for Mr. Sho molile .
27. Mr. Shomolile ran away , and the accused chased after him. During this,
the accused at one point turned back and threw stones at a person named
Maggie Barends , who is the complainant in Count 6. M s. Barends reacted
and threw the accused also wi th stones. The accused also slapped a
person with the name Rosie.
28. Pursuant to the aforesaid events, Mr. Shomolile ended up at a house next
to where Mr. T[...] O[...] (the deceased in Count 8 ) resided. He referred to
the deceased as “ T[...]”. The deceased was at that stage standing in the
gate of their yard.
29. The accused started swearing and Mr. Shomolile told him to put the knife
down and fight with him. The accused pretended to put the knife away but
chased the witness again. The witness ran away and left his sandals
behind. The accused took the sandals and started cutting it with the knife.
30. Mr. O[...] was still standing in the gate, and the accused told him that he
must not worry because he is the last one. The deceased replied by
saying that it was fine.
31. The accused then went to him and stabbed him in the heart , whereafter
the deceased fell and la y there in the gate.
32. The accused chased after Mr. Shomolile again.
33. Under cross -examination Mr. Shomolile testified that the accused would
definitely have stabbed him, because he was angry.
34. He confirmed that the accused told the deceased that he was last.
35. The next witness was Ms. Maggie Barends, the complainant in Count 6.
She testified that she kn ows the accused.
36. On the day of the incident , 29 April 2023, as testified to by Mr. Shomolile,
she reprimanded the accused because he wanted to fight with Pepe and
Rosie. They ran into a house whereafter the accused started hitting the
door of that house with a spade. Ms. Barends intervened but he did not
want to stop.
37. The accused r an into the direction of his house and came back with a
knife. He started chasing after Mr. Shomolile with the knife. The accused
started throwing bottles and stones at Ms. Barends . One of the bottles hit
her on the left hand. She testified that the hand w as only a bit red. The
witness reacted and threw stones and bottles back at the accused.
38. It was put to her under cross -examination that she was the first to throw
stones at the accused. She denied this and repeated that the accused
was the first to do it.
39. It was also put to Ms. Barends that the accused denies throwing bottles at
her. She confirmed that he did and that one of the bottles hit her on the
hand.
40. The next witness was Jaynal Ahmed, who is the complainant in Count 4.
He is the owner of a shop near the place where the accused resides.
41. He knows the accused. On the day of the incident, the 28th of July 2022,
the accused came to his tuckshop and ask ed for a R20. The witness told
him that he does not have money. The accused then demanded a
cigarette from the witness. The witness refused and the accused started
swearing. Mr. Ahmed’s daughter told him to close the shop. In the process
of closing the shop, the accused threw a stone at him and hit him on the
finger. The witness became weak and fell. The finger was bleeding a lot
and was painful.
42. Mr. Ahmed went to the hospital where he was told that the finger had to be
amputated. He refused and went hom e after treatment. He testified that
he did not do anything to the accused. The witness testified that his finger
is still painful and cannot bend.
43. It was put to the witness that the accused never asked him for money.
That the accused wanted to buy c igarettes and coal for a hubbly pipe. The
witness said that the cigarettes and charcoal were bought by two other
girls.
44. It was put to Mr. Ahmed that the coal was broken into half and that he did
not want to replace it. The accused wanted his money back, but the
witness refused. The witness then came with a knife and wanted to stab
the accused. The accused ran away, picked up a stone and threw it at the
witness. The accused does not know if t he stone hit the witness.
45. Mr. Ahmed denied the version of the accused and stated that he did not
have a knife. He said that the accused was lying and that he had wanted
money, swore at him and threw him with a stone.
THE DEFENCE’S CASE
46. At the start of the case for the defence, it was placed on record that the
accused elected not to testify in respect of the charges in Counts 2, 3, 7
and 8. He elected to only give evidence in reply to the allegations in
Counts 1, 4 and 6.
47. In respect of Count 1 , the charge of murder at the Chila Mati tavern, on
the 13th of February 2022, the accused testified that the deceased wanted
to rob him. The deceased had a knife which had a fix ed blade. The
deceased stabbed him, and the knife fell out of his hand. The accused
kicked his hand away and picked up the knife. He stabbed the deceased
twice on the b ack. He said that when the deceased turned his back, he
stabbed him twice because he was angry.
48. In respect of Count 4, pertaining to the events on the 28th of July 2022, t he
accused stated that Mr. Ahmed did not want to give his money back. The
witnes s had a knife and wanted to hurt him with the knife, he went out of
the shop, picked up a stone and threw it at the witness, who continued to
come at him.
49. In respect of Count 6, regarding the events of the 29th of April 2023, t he
accused testified that the complainant Ms. Barends threw stones at him
and that he only reacted to that.
50. The Accused did not call other witnesses.
THE LEGAL POSITION
51. It is trite law that the State bears the onus to prove beyond reasonable
doubt that the accused is guilty and if the evidence prove the version of
the accused to be reasonably possibly true, they must be acquitted. The
ultimate finding though must account for all the evidence . This means
that the evidence for the State or that for the accused must not be
considered in a vacuum separately. The versions of the accused, its
inherent probabilities and improbabilities and credibility, must accordingly
be assesse d also to decide if it reasonably possibly true.
52. In this regard , mention must be made of the matter of S v Van der
Meyden 1999 (1) SASV 447 (W), 1999 (2) SA 79 (W) op 450 a (SASV),
82C - E (SA).
“It is difficult to see how a defence can possibly be true if at the same time
the State's case with which it is irreconcilable is ''completely acceptable
and unshaken''. The passage seems to suggest that the evidence is to be
separated into compartments, a nd the ''defence case'' examined in
isolation, to determine whether it is so internally contradictory or
improbable as to be beyond the realm of reasonable possibility, failing
which the accused is entitled to be acquitted. If that is what was meant, it
is not correct. A court does not base its conclusion, whether it be to
convict or to acquit, on only part of the evidence. The conclusion which it
arrives at must account for all the evidence. . .
I am not sure that elaboration upon a well -established test is necessarily
helpful. On the contrary, it might at times contribute to confusion by
diverting the focus of the test. The proper test is that an accused is bound
to be convicted if the evidence establishes his guilt beyond reasonable
doubt, and the logica l corollary is that he must be acquitted if it is
reasonably possible that he might be innocent. The process of reasoning
which is appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the court has before it.
What must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or to acquit) must account for all the
evidence. Some of the evidence might be found to be false; some of
it might be found to be unreliab le; and some of it might be found to be only
possibly false or unreliable; but none of it may simply be ignored .
53. This holistic approach to the evaluation of the evidence is further stressed
in the matter of S v Chabalala 2003 (1) SACR 134 (SCA) on page 139 H -
140 A.
“The correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative of his
innocence, taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and, having done so, to
decide whether the balance weighs so heavily in favour of the State as to
exclude any reasonable doubt about the accused's guilt. The result may
prove that one scrap of evidence or one defect in the case for either party
(such as the failure to call a mater ial witness concerning an identity
parade) was decisive but that can only be an ex post facto determination
and a trial court (and counsel) should avoid the temptation to latch on to
one (apparently) obvious aspect without assessing it in the context of th e
full picture presented in evidence.”
54. The law is very clear about the weight of probabilities in the evaluation of
evidence.
55. In S v Shackell 2001 (4) SA 1 (SCA) in para 30 the following was said:
‘It is a trite principle that in criminal proceedings the prosecution must
prove its case beyond reasonable doubt and that a mere preponderance
of probabilities is not enough. Equally trite is the observation that, in view
of this standard of proof in a cri minal case, a court does not have to be
convinced that every detail of an accused’s version is true. If the
accused’s version is reasonably possibly true in substance, the court must
decide the matter on the acceptance of that version. Of course it is
perm issible to test the accused’s version against the inherent probabilities.
But it cannot be rejected merely because it is improbable; it can only be
rejected on the basis of inherent probabilities if it can be said to be
so improbable that it cannot reasona bly possibly be true. ’ (Own
emphas is added )
THE EVALUATION OF THE EVIDENCE
56. The accused did not present any evidence in rebu ttal of the evidence by
the State in relation to Counts 2, 3, 7 and 8.
57. It is clear that the evidence of Dion Kabelo Mongale, and Jessica Ngeza
can safely be accepted. The witnesses all made a good impression on the
Court, were clear in their evidence and did not contradict themselves or
the evidence of other witnesses. Essentially t he only aspect regarding
their evidence that was dispute d by the accused, was the accused’s
evidence that the deceased wanted to rob him, prior to the stabbing of the
deceased.
58. Dion Mongale and Jessica Ngeza corroborated each other in how the
events in respect of Count 2, 3 and 1 happened. The accuse d elected to
remain silent on material parts of their evidence wherefore there is nothing
against which their evidence can be weighed .
59. The accused only stated his version in respect of Count 1 , and even on
the accused’s own version he stabbed the deceased on count 1 because
he was angry after the deceased had tried to rob him at knife point. He
also admitted stabbing him more than once, which is consistent with the
state’s evidence.
60. The accused admitted to stabbing the deceased a fter he (the accused)
had taken possession of the knife after it had fallen from the deceased’s
hand, and he admitted stabbing him more than once, wherefore even on
the accused’s own evidence, he did not act in self-defence .
61. It would be untenable for the C ourt to accept the evidence of, and believe
in the credibility of th ese witnesses in respect of the allegations in Count 2
and 3, but at the same time, not accept their evidence in respect of Count
1. This was one continuous incident to which the two witnesses testified.
As already mentioned , the witnesses were credible and their evidence as
a whole ought to be accepted.
62. The same reasoning a s above, is applicable in respect of the evidence of
Brandon Shomolile . He did not only testif y to the attack on him by the
complainant, but also that the accused first threw stones at Maggie
Barends, the complainant in Count 6. It is similarly evident that he was a
confident and reliable witness who corroborat ed the evidence of Maggie
Barends.
63. In respect of the election by the accused to remain silent in respect of the
evidence on Counts 2, 3, 7 and 8 it is important to keep in mind what the
Constitutional Court said in S v Boesak 2001 (1) SACR 912 (CC), p923
E-F
“The fact that an accused person is under no obligation to testify does not
mean that there are no consequen ces attaching to a decision to remain
silent during the trial. If there is evidence calling for an answer, and an
accused person chooses to remain silent in the face of such evidence, a
court may well be entitled to conclude that the evidence is sufficient in
the absence of an explanation to prove the guilt of the accused. Whether
such a conclusion is justified will depend on the weight of the evidence. “
64. The Accused was a poor and unreliable witness in various respects of his
evidence .
65. In respect of the accused’s version to Count 1 , he found it difficult to
explain under cross -examination why the knife fell out of the hand of the
deceased. Why was the deceased not able to hurt him with the knife since
he, the accused, was unarmed? How was it possible that the deceased
did not get hold of the knife after it fell on the ground?
66. These are the exact inherent improbabilities that were referred to in S v
Shackell supra .
67. To summarise, the version of the accused in respect of Count 1 is so
inherently improbable that it cannot be accepted as reasonably possibly
true. His version does not take account of the credible evidenc e by Mr.
Mongale and Ms. Ngeza. It does not give a satisfactory explanation for the
location of the stab wounds on the back of the deceased. The location of
the stab wounds is in line with the evidence of Ms. Ngeza and Mr.
Mongale.
68. In respect of Count 2, even on the version of the accused, he had acted
beyond the scope of se lf-defence, as Mr Mongale did not present an
imminent danger to him, as Mr Mongale had only assaulted the accused
with an open hand (on the accused’s version).
69. This could clearly not be justification for stabbing at Mr Mongale more than
3 times.
70. In respect of Count 3, Mr Biyela argued that the accused lacked the
necessary intention to injure Ms Ngeza, as the blow was directed to Mr
Mongale, and that the accused had no way of knowing that Ms Ngeza was
going to put her hand out to push Mr Mongale.
71. Snyman, 7th Edition, page 161 defines dolus eventualis as follows:
“A person acts with intention in the form of dolus eventualis if the
commission of the unlawful act or the causing of the unlawful result is not
his main aim, but:
(a) he subjectively foresees the possibility that, in striving towards his
main aim, the unlawful act may be committed or the unlawful
result may be caused, and
(b) he reconciles himself to this possibility. ”
72. The accused had clearly foreseen that if he stabbed at Mr. Mongale, he
could hit Ms. Ngeza. He reconciled him with that foresight of injuring
Ngeza, when he continued to stab at Mr. Mongale.
73. In respect of C ount 4, the complainant Mr. Jaynal Ahmed, was a very
good witness. It is indeed so that he was a single witness to the event, but
his evidence was more than satisfactory in all material aspects. He clearly
and concisely testified as to the events that had transpired on the 28th of
July 2022 , and was consistent and unshakeable during cross examination.
74. As set out in the matter of S v Khumalo 1991 (4) SA 310 (A) at 327J to
328B :
“Dit is geykte reg dat die getuienis van 'n enkelgetuie met versigtigheid
benader moet word. Normaalweg word die getuienis van 'n enkelgetuie
slegs aanvaar as dit in elke wesenlike opsig bevredigend is of daar J
stawing A daarvoor is ( R v Mokoena 1956 (3) SA 81 (A) op 8 5-6; S v
Letsedi 1963 (2) SA 471 (A) op 473F; S v Sauls and Others 1981 (3) SA
172 (A) op 180E -G). Stawing in dié sin is 'bevestigende bewysmateriaal
buite die getuienis wat gestaaf word' (Schmidt Bewysreg 3de uitg op 108).
Die stawing hoef n ie noodwendig die beskuldigde met die misdaad te
verbind B nie. Die getuienis van 'n enkelgetuie, soos Holmes AR in S v
Artman and Another 1968 (3) SA 339 (A) op 341A -B opgemerk het, 'does
not require the existence of implicatory corroboration; indeed in that event
she would not be a single witness'.
75. The ac cused’s version in respect of Count 4, is inherently improbable. If
Mr. Ahmed was armed with a knife, why did he not stab him the accused ?
The accused expected the court to believe that it was probably because
he had run away. Why did he then stop and not r un further when,
according to his evidence, the witness came at him with the knife? It is
clear that the accused had thrown the witness from a distance, because i t
is common cause that the witness was injured by a stone being thrown
and not by being hit at with a stone.
76. There was thus no possibility under the circumstances that the witness
would have been able to stab the accused, if the accused’s version that
Mr. Ahmed had a knife, was to be believed.
77. Once again, these are the exact inherent improbabilities that were referred
to in S v Shackell supra .
78. In respect of Count 4 , the version of the accused in is so inherently
improbable that it cannot be accepted as reasonably possibly true , it is
evident that the accused invented the version that Mr. Ahmed was armed
with a knife , whereas the true facts are that Mr Ahmed did not try to attack
the accused with a knife and that the accused did not act in self -defence.
79. In respect of Count 6 , it is evident that Brandon Shomolile, provides
credible corroboration for Maggie Barends. The accused at the stage was
riotous and clearly wanted to fight everyone who was not happy with his
conduct. The events of Counts 6, 7 and 8 constitutes one sequence of
events th at cannot be separated from each other. In that respect the
conduct of the accused is relevant to all three charges.
80. The accused himself admitted that he wanted to stab Brandon Shomolile .
He also admitted that he had stabbed the deceased in respect of Count 8 .
81. In none of the instances, did he provide any lawful justification for his
violent conduct. At the time he was reprimanded by M s. Barends , he was
already on an unlawful and violent excursion. M s. Barend ’s action was in
response to his violent conduct towards children. It can therefore not be
said that the accused acted in self -defence, even if M s. Barends had in
fact thrown a stone at him first.
82. The evidence however is that the accused attacked M s. Barends , because
she reprimanded him. In response to the attack by the accused, she threw
the items back to him. Ms Barends did not seek medical attention
regarding her injuries.
83. It is not expected of the State to prove its case beyond all doubt, as i t was
stated on 182 b -d of S v Ntsele 1998 (2) SASV 178 (A) :
“Na my mening is daar geen fout te vind met hierdie slotsom waartoe die
Verhoorhof gekom het nie. Die bewyslas wat in ‘n strafsaak op die Staat
rus is om die skuld van die aangeklaagde bo redelike twyfel te bewys - nie
bo elke sweempie van twyfel nie... Ons reg vereis insgelyks nie dat ‘n hof
slegs op absolute sekerheid sal handel nie, maar wel op geregverdigde en
redelike oortuigings - niks meer en niks minder nie.”
84. Assault is defined by Snyman, 7th Edition, page 395 , to also be the
inspiring of the belie f that the impairment of the bodily integrity is
imminent.
85. This was clearly established by the evidence of Mr Shomolile, and in view
of the fact that the accused had chased and threatened Mr Shomolile
repeatedly with a knife, confirms that the accused had the intended to
assault him with the intent to do grievous bodily harm.
86. In respect of Count 6, the accused unlawfully assaulted Maggie Barends
and he did not act in self -defence.
87. In respect of Count 7 , the accused assaulted Brandon Shomolile with the
intent to do grievous bodily harm. The accused chase d him with the knife.
Mr. Shomolile testified that the accused would have stabbed him because
he was angry.
88. In respect of Count 8 , the State alleges that the accused had committed
the murder with a premeditated mindset. The evidence regarding the
events leading up to the attack on the deceased , is that the accused was
fighting with other people and at the time before it, he had chased
Brandon Shomolile with a knife. He even threatened the deceased by
saying that he would be last.
89. After cutting the shoes of Brandon, the accused walked up to the
deceased and stabbed him once, penetrating his heart. At the time, the
deceased was standing in the gate, leading inside their yard.
90. At the time of the attack, there was no incident that had transpired in
relation to the deceased, which could have caused the accused to act on
the spur of the moment, and he further more aimed the blow at a sensitive
part of the body to deliver a lethal stab to the deceased . This, linked to
the fact that the accused had instructed his sister to go and fetch a knife,
and after her refusal to do so, the accused himself left to fetch a knife, and
returned to the scene.
91. In exhibit “D”, the Medico Legal report of Dr Lemaine Fouche, the injury to
the deceased is described as: “… a penetrating stab wound through the
3rd intercostal space with damage to the pulmonary trunk and the right
atrium. ”
92. From the aforesaid, I am convinced that the accused had acted with a
premeditated mindset , in committing the murder of the deceased in
respect of Count 8 .
93. With regard to the credibility of the witnesses, I considered the totality of
the evidence presented including inconsistencies, probabilities and
improbabilities, the strength and weaknesses of either versions as well as
their weight. The evidence of the state witnesses corroborated each other
in material respects. Where there were inconsistencies in the state case, I
found them not to be adversely affecting the state’s case.
94. The witnesses were able to paint a picture of the 3 incident s from which
the counts emanate. Even if the State’s case cannot be said to have been
without blemish in the versions of the individual witnesses, the totality of
the evidence, nevertheless, presented a formidable case against the
accused.
95. I am satisfied that the s tate has discharged its duty to prove its case
beyond reasonable doubt. The accused’s version is far -fetched and
untenable. I therefore reject the version of the accused not only as not
reasonably possibly true but indeed fabricated.
96. On a conspect us of all the evidence in this case I return the following
verdict against the accused:
1. Count 1: I find the accused guilty of murder with dolus directus as
the form of intent.
2. Count 2: I find the accused guilty of assault with intent to do
grievous bodily harm.
3. Count 3: I find the accused guilty of assault with intent to do
grievous bodily harm .
4. Count 4: I find the accused guilty of assault with intent to do
grievous bodily harm.
5. Count 6: I find the accused guilty of assault.
6. Count 7: I find the accused guilty of assault with intent to do
grievous bodily harm .
7. Count 8: I find the accused guilty of premeditated murder with dolus
directus as the form of intent , read with section 51(1) of
the C riminal Law Amendment Act, 105 of 1997 .
__________________
AG VAN TONDER
ACTING JUDGE
On behalf of the State : Adv. J.D. Rosenberg (oio The Director of Public
Prosecutions
On behalf of the Accused : Adv K. Biyela (oio Legal Aid South Africa )