IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG

Appeal No: AR171/2024
In the matter between:

NHLANHLA NDABAZEZWE ZIKHALI APPELLANT
and

THE STATE RESPONDENT


Coram : Chetty and Mossop J J
Heard: 16 May 2025
Delivered: 23 May 2025


ORDER

On appeal from : the Ngwel ezane Regional Court (sitting as the court of first
instance) :
1. The appeal against conviction is dismissed.
2. The appeal against sentence is upheld and the sentence of life imprisonment
imposed upon the appellant is set aside and is replaced with a sentence of 2 0 years’
imprisonment.
3. The sentence is antedated, in terms of the provisions of s 282 of the Criminal
Procedure Act 51 of 1977, to 12 March 2024.


JUDGMENT

2

MOSSOP J (CHETTY J concurring) :
Introduction [1] The appellant was convicted in the Ngwelezan e Regional Court of the murder
of Ms Winile Zwane (the deceased) , a woman with whom he had been involved in a
romantic relationship. He was sentenced to life imprisonment and now appeals
against both his conviction and sentence.
The appellant’s defence
[2] When called upon to plead to the charge, the appellant pleaded not guilty, and
his legal representative indicated that the appellant would assert that he was not at the place where the deceased was killed but had left there earlier that day and had
gone to Mtubatuba. His defence was , thus, an alibi and this was disclosed at the
commencement of the trial.

Alibis
[3] It is so that there is no onus on an accused person to establish an alibi. Where
such a defence is raised, it is the task of the State to disprove it and to establish that
the accused person was at the scene of the crime. In R v Mokoena,
1 the court held
that:
‘If the onus is upon the Crown to rebut the alibi, as it certainly is, then the
evidence as a whole must be considered and the fact that the accused and his witness told stories, which in some respects disagree, does not mean that
the Crown case has been prov ed beyond reasonable doubt.’

[4] It follows that i f an alibi might be reasonably true, the accused must be
acquitted. As was pointed out in Mokoena, t he correct approach is to consider the

1 R v Mokoena 1958 (2) SA 212 (T) (Mokoena ) at 217G-H.
3
alibi in the light of the totality of the evidence presented to the court . In evaluating the
evidence of an alibi, Holmes A JA observed in R v Hlongwane that :2
‘At the conclusion of the whole case the issues were (a) whether the alibi
might reasonably be true and (b) whether the denial of complicity might
reasonably be true. An affirmative answer to either (a) or (b) would mean that
the Crown failed to prove beyond reasonable doubt that the accused was one
of the robbers.’
[5] The Supreme Court of Appeal in S v Musiker
3 observ ed that once an alibi has
been raised, it had ‘to be accepted, unless it was proved to be false beyond
reasonable doubt ’. In S v Burger and others,4 the same court held that it wa s worth
noting that mere lies for an alibi defence do not warrant ‘punishment for untruthful
evidence’ . However, where an alibi is presented and it contradicts the evidence
presented before the court, and the alibi later turns out to be a lie or a falsehood, th is
lie, together with the other evidence of the accused as a whole, may point towards
the accused person’s guilt in certain cases.
The medical evidence
[6] Given the observations made by the eyewitnesses to the murder, it is first
necessary to consider in some detail t he post-mortem report of the pathologist, Dr F
van Niekerk (Dr van Niekerk), who performed the examination of the deceased’s
body . His report, received by the trial court with the consent of the defence, noted:
‘Stab wounds – Chest
Stab wounds – Right Hip
Stab wounds – Right Loin Area.’

[7] Expanding upon what he observed, Dr van Niekerk recorded that:
‘There is a plus minus 5cm x 1cm stab wound just below the right clavicle to
the anterior chest wall. Massive blood loss occurred in the right thoracic cavitae. There are four other stab wounds to the chest. There is a stab wound

2 R v Hlongwane [1959] 3 All SA 308 (A); 1959 (3) SA 337 (A) at 339C -D.
3 S v Musiker [2012] ZASCA 198; 2013 (1) SACR 517 (SCA) para 15.
4 S v Burger and others [2010] ZASCA 12; 2010 (2) SACR 1 (SCA) (Burger ) para 30.
4
through the right hypochondrium. There is plus minus 720ml blood in the
chest cavitae. ’
[8] Dr van Niekerk went on to state that:
‘The blade penetrated the apex of the right lung and the right pulmonary
artery. A stab wound penetrated the lobe of the right lung… The blade penetrated the right lobe of the liver…
There is a stab wo und through the right kidney. ’
[9] Dr van Niekerk thus found the cause of death to be:
‘Multiple Stab Wounds – Bilateral Haemopneumothorax.’
The eyewitnesses
[10] The submission of counsel for the appellant in his heads of argument that :
‘[t]he conviction of the appellant is founded on the evidence of a single eye witness (sic) who was a friend of the deceased …’
must immediately be dispelled. There were two State witnesses who testified
to the events that led to the death of the deceased, not just one. Before us,
counsel for the appellant, Mr Chiliza, correctly acknowledged this to be the
case.
[11] The evidence adduced before the regional court , and which was not
contradicted by the appellant, was that the deceased and he had been in a romantic
relationship but that he had ordered the deceased to leave the home that they
shared, as he did not approve of certain aspects of her conduct. Rendered without a
roof over her head, the deceased had taken up lodgings with the second State witness, who was Ms Ntombi Ntuli, referred to by all as ‘Ma Mthethwa’ (Ma
Mthethwa) . The deceased had been residing with her for approximately three days
before her life was taken from her .
[12] Both Ma Mthethwa and the first State witness, Ms Nomonde Ncwane (Ms
Ncwane) , testified that they had been drinking beer on the day that the deceased
was murdered, namely 27 February 2023. Ma Mthethwa had not been drinking as
5
long as Ms Ncwane, as she had left the place where they were drinking and had
gone home early to commence cooking the evening meal. Ms Ncwane candidly
described her state of sobriety as being:
‘… drunk … but I was not too drunk …’.

[13] At around 21h00, Ms Ncwane explained that she was at her mother’s
homestead when she observed the deceased passing by and she called out to her.
She testified that the deceased appeared to be in a happy mood as she was singing.
The deceased tarried for a while at Ms Ncwane’s mother’s homestead. Ms Ncwane
testified that there was ample electric lighting at the home and there was a powerful floodlight in close proximity to the homestead that lit up its immediate environs.
[14] Ms Ncwane explained that t he appellant, who was known in the area by the
moniker ‘Sgora’ , then arrived at her mother’s home, walking quickly . She testified
that she had known him for approximately two years and that he resided in the same area as she did. Upon his arrival , he pulled the deceased by the arm, and she fell, or
was pushed, to the ground. The appellant then stamped on her with his feet and
asked her where the police were that she had apparently called for him. He taunted
her to call them again. [15] Ms Ncwane estimated that all this, and what happened next, occurred
approximately two and a half to three metres away from her. The appellant then
produced a knife, reported by both eyewitnesses to be an Okapi knife, and
commenced stabbing the deceased. Stabbing blows were inflicted to the deceased’s
chest and the left side of her stomach, just below the rib cage.
5 Ms Ncwane said that
she fled to the nearby home of Ma Mthethwa and reported to her what was
happening.
[16] Ma Mthethwa testified that upon the arrival of Ms Ncwane at her home, she
immediately went to the scene of the attack upon the deceased. Disagreeing with the
evidence of Ms Ncwane, she estimated that the time then was around 19h00. Upon
her arrival , she observed the deceased lying on her side and the appellant was still

5 A reference to the ‘left’ side of the deceased’s body would be made from the observer’s point of view
and would thus be a reference to the right side of the body.
6
in attendance. He was stabbing the deceased just below the breast and was
stabbing her ‘very fast’. She made her observations of the scene, and therefore of
the appellant, from a distance of approximately three metres.

[17] The findings of Dr van Niekerk at the autopsy that he conducted on the
deceased’s body were considered in some detail earlier in this judgment. The
observations of the two eyewitnesses accorded with what Dr van Niekerk found upon
examining the deceased’s body .
[18] Ma Mthethwa testified that at one stage, the appellant rose up from the
deceased’s body and pointed his finger at her and said to her:
‘You, Ma Mthethwa.’
This gave her a further opportunity to identify the murderer. Ma Mthethwa was certain that it was the appellant, whom she had known for approximately seven years. They both resided at Slovo Village.
[19] In her evidence in chief, t he State prosecutor enquired from Ma Mthethwa
what she would say if it was put to her that the appellant was not at the scene of the
crime. Her response was:
‘I will dispute that, Your Worship, because I am being truthful. I know even his
walk, that is the accused’s walk. And the clothes that he was wearing on that day, Your Worship.’
[20] Ma Mthethwa conced ed that she had been drinking beer earlier in the day but
said that she was sober at the time that she observed the appellant stabbing the deceased. Under cross -examination, she could not be made to depart from her
version of events. When asked whether she simply assumed that the appellant carried, and utilised, an Okapi knife, her rejection of this proposition was detailed and
convincing:
‘Your Worship, I am not assuming. I have seen him before carrying a knife and I saw him again when he was stabbing the deceased. As he was in a process of stabbing, when he was pulling up his hand and stab, I could see the blade. And I could see the ring that is usually put in an Okapi handle, Your Worship.’
7

[21] The appellant’s version was put to Ma Mthethwa thus:
‘The accused will tell this Court that he left in the afternoon on the very same
day, and he went to Mtubatuba. At the time when the deceased was killed, he was not in the area.’
That proposition elicited the following reply:
‘He was there, Your Worship, I saw him at the scene, Your Worship.’
The appellant ’s case
[22] The appellant testified in his defence and confirmed that he had ordered the
deceased to leave his home. He acknowledged that he had seen the deceased on
the day of her death in the street near M a Mthethwa’s home. He had informed her
that he was going to Mtubatuba, and he had then departed for that place . He was
asked by his counsel whether he told anyone else about his intention to go to
Mtubatuba and responded in the following fashion:
‘Most people knew, especially my customers because I sell charcoal at Slovo,
so I did inform my customers that I will be gone from Monday until 2 to 3
weeks because it was a season to harvest reeds.’

[23] He testified that he returned to his home on 9 March 2023 and was arrested
the next day and repeated that he was at Mtubatuba when the deceased was
murdered.

[24] The solidity of the appellant’s alibi began to exhibit some vulnerability when he
was asked earlier in his testimony about what time he had left to go to Mtubatuba.
He initially said he had done so at 15h30. When his legal representative put the version of the first State witness to the appellant, namely that she had seen him on
the evening of 27 February 2023 at her mother’s home, the appellant responded as follows:
‘I do not know because I left around - I left Slovo around 15:00. So, what
happened after or later in the afternoon I do not know anything about.’
The time that he allegedly left his home had, thus, shifted.

8
[25] The issue of the lighting at the scene of the murder was canvassed by the
appellant’s legal representative with the appellant. The earlier evidence of the two
eyewitnesses was that an external floodlight had cast light over a large area,
permitting the murder of the deceased to be easily observed. To this, the appellant
commented as follows:
‘There was a light that provided light in that area but it was switched off.’
That version was never put to any of the State witnesses. Their evidence on the
adequacy of the external light accordingly went undisturbed and unchallenged and
must be accepted.
[26] The second State witness, Ma Mthethwa, had given a description of the
appellant’s clothing during her evidence. She had described him as wearing white oversized trouser s and a khaki -coloured shirt. The appellant admitted that he owned
a khaki -coloured shirt. As regards the white trousers, after initially denying that he
owned such trousers, and asserting that he had black trousers that he would wear
when going ‘coal harvesting, ’ his legal representative asked him again whether he
possessed white trousers. He changed his answer and responded thus:
‘I did, Your Worship, prior the incident, maybe November towards the end of
2022 but I later damaged it.’

[27] The appellant could think of no reason why either of the two State witnesses
would falsely put him at the scene of the murder. He mentioned that he had once bravely entered a burning house that belonged to Ma Mthethwa and rescued her six -
month- old baby from certain death. Ma Mthethwa, in his opinion, should therefore be
well-disposed towards him. All that he could advance in his explanation of the
eyewitnesses’ damning evidence was that they were mistaken.
[28] Under cross -examination, the appellant then denied that he forced the
deceased to leave his home. When it was pointed out to him that the evidence led by
the State witnesses to this effect had not been challenged, the appellant countered this difficulty by stating that he did not know that he was supposed to deny this evidence.

9
[29] As regards the observations made by M a Mthethwa at the scene of the
murder when she identified the appellant as the murderer, the appellant agreed that
the distance from which she made her observations, approximately three metres,
was a very short distance. He explained further as follows:
‘Yes, the distance is very short. There is nothing that can obstruct a person to identify a person they know but, however, I was not there.’
[30] In making that statement, the appellant inadvertently identified the very
essence of the matter. He had been known to the State witnesses for several years .
And they were both in close proximity to the murderer at the place where the murder
was carried out and from where they made their observations . The scene was lit by
an external floodlight. In those circumstances, it would be important for him to offer compelling evidence of why a mistake was being made by the State witnesses in
describing him as being the murderer .
[31] While I have already explained that the appellant bore no onus to establish his
alibi, he would, perhaps, have been able to dispel the powerful case presented by
the State by calling a witness, or witnesses, who could confirm that he had left
Mtubatuba and was at his family home at the critical time. But the appellant called no
witness of any kind to substantiate his version. None of his charcoal purchasing
customers came to testify that they knew he was not in the area at the time of the murder. None of his family members came forward to state that he was at the family homestead in Mtubatuba.
Analysis: conviction [32] The evidence adduced by the State was that of two witnesses who had known
the appellant for several years and who made their observations regarding the
murderer’s identity from a short range. The presence of the floodlight permitted such
observations to be made. Experience and common sense teach that persons who have known each other for extended periods of time are unlikely to misidentify each other , especially at close range. The appellant himself conceded this to be the case.
Even if the evidence of the first State witness was discounted because she had been
10
drinking earlier , which I do not believe that it should have been, the evidence of Ma
Mthethwa placed the issue of the identity of the murderer beyond doubt.

[33] To this, the appellant offer ed an unconfirmed alibi. In my view, an alibi is only
as good as its details and the details in the appellant’s alibi are, in my view,
singularly lacking. The alibi , in truth, is simply provided by the applicant himself. That
unsubstantiated version cannot in the circumstances raise a reasonable doubt as regards the direct eyewitness testimony of the two S tate witnesses. Their familiarity
with the appellant and their immediate proximity to the scene of the murder renders it entirely unlikely that the appellant’s self -proclaimed alibi might reasonably be true. It
follows that his denial of complicity in the murder of the deceased must also be false,
and the reasoning referred to in Burger therefore finds application.
[34] In my view, after a balanced consideration of all the evidence, the State
established beyond reasonable doubt that the appellant was at the scene of the crime and that he was the murderer of the deceased. The court a quo was
accordingly correct to accept the evidence of the State witnesses , notwithstanding
the admitted condition of the first State witness. The evidence of the two
eyewitnesses demonstrated the falsity of the alibi. The appellant was, therefore,
correctly convicted.
Analysis: sentence
[35] The appellant was sentenced by the trial court to life imprisonment for brutally
butchering the deceased, the woman with whom he had, until very recently, been
content to share a home with. The basis for the imposition of that sentence was the
allegation by the State that the appellant was guilty of premedi tated murder , as
contemplated in s 51(1) of the Criminal Law Amendment Act 105 of 1997 (the Act).
6
If the appellant was guilty of planning the death of the deceased and then executing
that plan, then that is the end of the appeal, for the sentence imposed upon him

6 Section 51(1) of the Act prescribes a sentence of life imprisonment for any person convicted of an
offence mentioned in Part 1 of Schedule 2 to the Act. That part of the schedule includes the offence of
murder when it was planned or premeditated.
11
would have been entirely appropriate and would be the ordained sentence in terms
of the Act.

[36] It, however, cannot simply be assumed that because the deceased’s death
was violent and cruel, her murder was premeditated or planned. There very often is
evidence of premeditation that the State can lead. It can be adduced, for example,
by witnesses who have knowledge of events that led up to the crime being committed . But sometimes there is no such evidence, and the court is then required
to employ inferential reasoning by considering the facts found to have been proven
and to then deduce from those facts whether it was established that the commission
of the offence was premeditated or not.
[37] In S v Raath ,
7 the court remarked that the legislature had made no attempt to
define the meaning of ‘planned’ or ‘premeditated’ when crafting the Act . The court
expressed itself on the issue as follows:
‘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 … 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”. ’

[38] In its reasoning, the court in Raath appeared to draw no distinction in meaning
between the words ‘planned’ and ‘premeditated,’ and they were both considered to
describe the same type of conduct. However, a distinction was drawn between the

7 S v Raath 2009 (2) SACR 46 (C) (Raath ) para 16.
12
meaning of those two words in S v PM ,8 a matter decided five years after Raath was
decided. ‘Premeditated’ was found to mean: 9
‘… something done deliberately after rationally considering the timing or
method of so doing, calculated to increase the likelihood of success, or to
evade detection or apprehension.’
‘Planned’, on the other hand, was found to mean a reference to:
‘… a scheme, design or method of acting, doing, proceeding or making, which
is developed in advance as a process, calculated to optimally achieve a goal.’
It seems to me that the court strained, unnaturally, to divine a difference in meaning
in the two words.

[39] In S v Jordaan,10 decided four years after PM , the court found the attempt to
discern a difference between ‘premeditated’ and ‘planned’ to be unconvincing and
concluded that the element of ‘rational consideration’ referred to by the court
in PM in its definition of ‘premeditation’ was equally inherent in any exercise of
planning.

[40] The Supreme Court of Appeal was presented with an opportunity to consider
the meaning of the two words in Montsho v S .11 However, Petse JA, with whom the
rest of the court concurred, stated that :
‘In the view I take of the matter, I do not consider that there is any benefit to
be derived, on the facts of this case, in formulating a general definition of
whether the phrase ‘planned or premeditated’ denotes a single concept. The
inquiry as to whether or not any given facts would at the very least sustain an inference to be drawn from them as to whether or not an accused had
manifested a plan or premeditation to commit the offence in issue can properly be determined on a case by case basis. Thus the circumstances in which a crime was committed and the peculiar facts of each case will determine whether or not the commission of the crime was planned or premeditated. ’


8 S v PM 2014 (2) SACR 481 (GP) (PM).
9 Ibid para 36.
10 S v Jordaan and others 2018 (1) SACR 522 (WCC) (Jordaan ) para 127.
11 Montsho v S [2015] ZASCA 187 para 13.
13
[41] In my view, both words amount to the same thing, and I am inclined to follow
the reasoning in Raath and Jordaan. After all, the dictionary meaning of
‘premeditated’ is:
‘To think out and plan an action, especially a crime, beforehand.’12
The definition of the one word thus includes a reference to the other word.

[42] Was there any evidence that the murder was premeditated or planned? No
direct evidence on that score was led by the State. The only witnesses called by the State were those who witnessed the brutal attack , but they did not speak about what
may have led to it. There was no evidence of the appellant’s state of mind. There
was, however, evidence that the appellant had order ed the deceased from his home
a few days before he killed her but none of the State witnesses seemed to have any knowledge of why he wanted her to leave his home. The ejectment of the deceased
from his home provides no certainty that the appellant intended to kill the deceased. On the contrary, it would tend to indicate that was not his intention. Furthermore, on the day of the murder, there was nothing to indicate that the appellant knew where the deceased was and it is possible that he randomly came upon her . The evidence
presented by the State was extremely limited and involved the appellant coming
across the deceased at the scene, grabbing her by the arm, asking her where the
police were, forcing her to the ground, and then stabbing her to death. The murder
was carried out in full view of several witnesses.

[43] In coming to the conclusion to which I am inescapably drawn, I do not lose
sight of the words of the Supreme Court of Appeal i n Kekana v S,
13 when it was
stated that:
‘… it is not necessary that the appellant should have thought or planned his
action a long period of time in advance before carrying out his plan. Time is
not the only consideration because even a few minutes are enough to carry
out a premeditated action. ’
[44] I am, however, on the scarcity of the evidence adduced by the State, unable
to confidently conclude that this callous murder was premeditated or planned. It

12 Oxford South African Concise Dictionary 2 ed (2016).
13 Kekana v S [2014] ZASCA 158 para 13.
14
could just as easily have happened without any planning, occurring spontaneously in
a fit of rage. The fact t hat it was carried out in the presence of witnesses tends to
suggest that to be the case. As was said in Dlomo v S: 14
‘There are too many variables that would need to align to make it a
premeditated murder. I do not accept that the time between the appellant
seeing the deceased at the bottle store and the moment that he shot him
constitutes evidence of premeditation. If that were the case, virtually all
murders would be premeditated. ’

[45] Furthermore, the fact that the appellant carried an Okapi knife in his pocket is
no indication of a prior intention to commit murder . Indeed, Ma Mthethwa testified
that she had often seen the appellant with such a knife. I am, in the circumstances,
not persuaded that the State established that the murder was premeditated.
[46] In the circumstances, the sentence imposed upon the appellant cannot stand.
Murder that is not premeditated falls within Part II of Schedule 2 to the Act and imprisonment for a period of 15 years is the ordained minimum sentence. That
minimum sentence may be reduced upon the establishment of substantial and
compelling circumstances being established. Conversely, it may also be increased,
subject to the provisions of s 51(2) of the Act , which read as follows:
‘Notwithstanding any other law but subject to subsections (3) and (6), a
regional court or a High Court shall sentence a person who has been
convicted of an offence referred to in – (a) Part II of Schedule 2, in the case of
– (i) a first offender, to imprisonment for a period not less than 15 years;
… Provided that the maximum term of imprisonment that a regional court may impose in terms of this subsection shall not exceed the minimum term of imprisonment that it must impose in terms of this subsection by more than five years. ’


14 Dlomo v S [2022] ZAKZPHC 33; 2023 (1) SACR 314 (KZP) para 27.

15
[47] In this matter, the appellant was in custody awaiting trial for a period of seven
months , which must be factored in when arriving at an appropriate sentence. He was
a first offender, was 44 years of age when sentenced and was unmarried but had
two children. He was a self -employed charcoal manufacturer who earned
approximately R7 000 per month fr om this enterprise.

[48] Nothing of any significance was adduced by the defence to justify a finding
that substantial and compelling circumstances had been established to warrant a
softening of the prescribed minimum sentence and the regional magistrate was
correct , in my view, in finding that there were none. The violence and the cruelty of
his attack upon the deceased in any event suggests that a more, rather than a less, severe sentence must be imposed upon the appellant. Our society is beset with the scourge of violent, gender -based crimes where w omen are the helpless victims. This
sad indictment of our society must be combatted by the imposition of appropriate
sentences that will serve to deter others from committing similar acts.
[49] After reflection, I am of the view this is an instance where the prescribed
minimum sentence should be increased by the permitted period allowed by the Act
and that a sentence of 20 years’ imprisonment should replace the sentence of life
imprisonment. The sentence shall be antedated to the date upon which sentence
was first imposed upon the appellant.
Order
[50] I would accordingly propose the following order:
1. The appeal against conviction is dismissed.
2. The appeal against sentence is upheld and the sentence of life
imprisonment imposed upon the appellant is set aside and is replaced with a sentence of 2 0 years’ imprisonment.
3. The sentence is antedated, in terms of the provisions of s 282 of the
Criminal Procedure Act 51 of 1977, to 12 March 2024.

MOSSOP J

16
I agree and it is so ordered:

CHETTY J

APPEARANCES
Counsel for the appellant : Mr E M Chiliza
Instructed by: Legal Aid South Africa
Durban Local Office
Ground Floor
The Marine Building
22 Dorothy Nyembe Street
Durban
Counsel for the respondent : Ms O Mdladlamba
Instructed by: Director of Public Prosecutions
KwaZulu -Natal