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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No: A57/2023
In the matter between:
J[...] P[...] Appellant
and
THE STATE Respondent
JUDGMENT
SIPUNZI AJ
[1] On 25 October 2019, the appellant was convicted in the Regional Court,
sitting at Bonnievale , on one count of murder, read with Section 51(2) of the Criminal
Law Amendment Act 105 of 1997 (CLAA), as well as one count of desecrating a
corpse . On 5 November 2019 , he was sentenced to undergo fifteen (15) years
imprisonment for murder and four (4) years imprisonment for desecrating of the
corpse , to be served concurrently. He now appeals his conviction and sentence with
leave of this Court .
[2] According to the appellant’s plea explanation, on 17 April 2017, the deceased ,
who was his girlfriend and with who m he lived , had gone out to attend a party. Upon
her return, the appellant was waiting outside the house. She entered, and shortly
thereafter, he followed her inside. The deceased was intoxicated and vomiting. In an
effort to prevent her from continuing to vomit indoors, he forcibly removed her from
the house because he could not stand the thought of her vomiting inside. She began
to bleed after she banged her head against some furniture and a pole within the
house. As they stood outside, he came to the grim realisation that she was no longer
alive. He refuted the allegation of having raped her.
[3] Dr. Laurens testified that she examined the body of the deceased on 10 A pril
2017. The body was cl othed in a long sleeve top and a panty . The deceased
exhibited injuries across her body, with some appear ing to be superficial while some
others were more serious . Among others, the deceased exhibited extensive
contusions on the lung s, and the left ventricle of the heart and the left lobe of the
liver was ruptured . During the gynecological examination , it was observed that the
deceased vagina had two tear wounds located at the five and six o’clock positions .
There was a five-millimeter tear above the opening that extended deeply upward in
the vagina in the direction of the three o’clock region . The primary findings from the
post-mortem examination indicated that her death resulted from the blunt force
trauma to the body .
[4] Based on her observation of various injuries , she noted that some of them
were inflicted ante -mortem, some peri -mortem and those located in the genitalia
were post -mortem . She opined that most of the injuries resulted from a significant
force that compressed the chest , as the contusion of the lung tissue was suggest ive
of a significant impact. It was proposed to her that the deceased may have
sustained the fatal injuries from a motor vehicle collis ion. She responded by
expressing the opinion that the extent of the injuries the deceased sustained was
such that it wou ld not have been possible for her to reach home alive from that motor
vehicle collision. She also opined that overall, the injuries she observed on the
deceased resulted from blunt force trauma and that the deceased m ight have been
lying on the floor or against a hard surface when the force applied compressed or
pressed her thoracic cavity .
[5] Van Rhyn was the friend of the appellant and was aware that the appellant
was residing with the deceased, who was his wife. According to him, on the day of
the incident, during the early hours of Saturday morning , he was travelling from the
township to W illemse ’s house. As he was approaching, he could hear noise coming
from the appellant’s house , it was the appellant striking his wife. He instructed
Willemse to go and stop the noise, but Willemse expressed his reluctance to get
involved. Instead, W illemse called the police, who failed to respond. He could hear
the a ppellant repeatedly telling M ammie Magrieta , another woman, that he was
going to kill the deceased. At that stage he also requested Mammie Magrieta to call
an ambulance .
[6] Eventually, h e and Werner went to stop the fight . The appellant grabbed a
spade , but they took it away from him. Then they realized that the deceased had
passed away, the body lay on the floor, exposed. The police arrived , and the spa de
was handed over to the m.
[7] Willemse testified that they lived in the same vicinity as the appellant, they
were neighbours. Their homes were separated by 2 other homes. During the
evening, they wer e together with the appellant. When the deceased arrived at their
home, he could see her from a distance of approximately 10 meters, she appeare d
to be intoxicated. The appellant returned home as well. Thereafter, he could hear
banging sound coming from the appellant’s house. In past altercations, the deceased
would raise her voice, yet what troubled him this time was her silence. During that
period, he was accompanied by Van Rhyn. He subsequently contacted the police,
yet their arrival was delayed.
[8] Sergeant Bashe of the SAPS, reported that he arrived at the appellant's home
in the early hours of the morning on 09 April 2017 , he was accompanied by a
colleague. They had received a complaint that the appellant was allegedly assaulting
his girlfriend. Upon arrival at the residence of the appellant , they spoke to Willemse
outside. He led them into the appellant’s house . This is where he discovered the
lifeless, unclothed body of the deceased on the floor, bearing injuries to her face.
Upon enquiring from the appellant about the circumstances of the injuries sustained
to her face, the response given was that she had struc k her face against the door
when she entered. The appellant also informed him that earlier they had an
argument with the deceased because she had left with one Lasla. The appellant
failed to provide any further detail.
[9] While at t he appellant’s residence , he also spoke to Van Rhyn, who reported
that he could hear from outside the appellant’s house that some one was being
assaulted with a spade. However, he did not give him the spade. Subsequently, he
called an ambulance and additi onal police officers to facilitate further investigati on.
In his view, the evidence was ample, leading him to arrest the appellant as well. The
appellant failed to specify the manner in which the deceased was undressed.
[10] The appellant also testified and confirmed that the deceased was his partner,
and they were living together at the time of her death. He confirmed that earlier in the
evening, he was in company of Van Rhyn and Willemse . They had spent the evening
together almost into midnight , had been drinking and was intoxicated. Earlier d uring
the night, he had gone to look for the deceased at Magrieta ’s house to enquire if the
deceased was not sleeping there.
[11] Around midnight, as he was heading home, he noticed the deceased
approaching from behind . They went to their residence. As she enter ed, the
deceased was staggering unsteadily from intoxication. She was wearing a skirt
paired with a T-shirt. She entered the bedroom and fell as leep. He made his way to
the kitchen to get food . When he went back to the bedroom , he observed that the
deceased had white foam coming from her mouth. This infuriated him, and he
reprimanded her for going out drinking , and as she felt the urge to vomit , he decided
to take her out. The deceased was staggering as they both st umbled out of the
house . During that process, they bumped into the wall s, at the exit, she struck the
door frame and fell to the ground. He had a suspicion that it was at that stage her
skirt slipped off. He lifted her and placed her on the sofa in the sitting room . At that
moment he saw that there was blood and grabbed the spade to remove it . However,
before he did that, he decided to call an am bulance. He then asked Mamie to c ontact
the police and an ambulance. At that time, the deceased was lying motionless.
When the police arrived, he was taken into custody.
[12] The appellant further observed that the deceased was clothed only in a panty
and t shirt when her body was found on the floor . He suspected that her skirt m ight
have fallen off when he was trying to help her out of their house. He could not recall
where the skirt fell. He also recalled that when he was taking the deceased out of
their house, she hit herself against the door frame , he was not able to re call how
many times she struck herself against the wall or furniture . He then took her back
into the house . At that stage, she was already naked , he also noticed that she was
unwell, and he covered her with a sheet . When the photos that were depicting the
body of the deceased w ere shown to him, the appellant testified tha t the deceased
was wearing the t -shirt as it appeared in the photos. He was not able to recall which
part of the deceased body hit against the wall or door frame as he was helping her
out of the house. He also recalled that at some stage the re was blood on the floor .
He decided to get a spade i n order to clean up but never did. He denied that he told
Mamie of his intention to kill the deceased. He also refuted the allegation that he
assaulted the deceased.
AD Conviction
[13] The primary challenge against the convictions, as presented by, and as
argued for the appell ant is that the trial court erred in finding that the evidence
established the guilt of the appellant beyond reasonable doubt on the following
factors, namely :
a) The trial court erred when it fo und that all the injuries on the deceased body
were inflicted by the appellant, intentionally;
b) The court erred in finding that the evidence established the guilt of the
appellant on the charge of murder beyond reasonable doub t.
c) That the evidence did not provide clarity on the number of blows that were
inflicted by the appellant on the deceased body , the amount of force and the
instrument used to inflict the fatal injuries.
[14] It is common cause that the appellant and the deceased were partners, and
they were cohabiting at the time of the incident. It is further common cause that the
appellant and the deceased were together inside their house when the deceased
succumbed to bodily injuries and when further injuries were inflicted in her genetalia .
This occurred during the night, shortly after the appellant and the deceased had
arrived at their home . The appellant was previously in the company of his
neighbours , where he was consuming alcohol . Earlier during that night, he had also
been searching for the deceased among their neighbours but was unable to find her.
[15] The cause of death is undisputed; the deceased succumbed to blunt force
injuries identified by Dr. Laurens during her postmortem examination of the body .
What remained to be determined during the trial was whether the accused had
caused the injuries on the deceased , with intention to kill and that he thereafter
desecrated the deceased corpse, also causing the vaginal injuries identified by Dr.
Laurens .
[16] The fundamental principle in the evaluation of evidence in criminal trials is that
the state bears the onus to prove beyond a reasonable doubt that the accused is
guilty of the commission of the offence , while the accused person does not carry an y
burden of proof . The test to apply in such evaluation was articulated in S v Van der
Meyden1, in that, ‘The proper test is that an accused bound to be convicted if the
evidence establish es his guilt beyond reasonable doubt, and the co rollary 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 the 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 fals e, some of it might be found to be unreliable; and some of it might
be found to be only possibly false or unreliable; but none of it may simply be
ignored.’
1 S v Van Meyden 1999 (2) 79 (W) @ 82
[17] Miss Kunju for the appellant submitted that there w ere no eyewitnesses who
observed the appellant striking the deceased. She did not challenge the evidence of
the state regarding the banging sound that emanated from the appellant’s house
whilst he was with the deceased . She however , cautioned that evaluation of the
evidence in relation to the banging sound that originated from the appellant ’s house
ought to bear in mind that the walls of the house were made from corrugated iron
sheets and therefore, the sounds would be louder as opposed to a so und that would
be produced from a brick -and-mortar wall. Concerning the nature of the injuries
sustained by the deceased, she conceded that the version of the appellant contained
contradictory statements and improbabilities . She argued that evaluation of his
version should also take into account that the appellant and the deceased were both
intoxicated, s uggesting that the injuries to the neck may have occurred while the
appellant was holding her, and taking her out of the house. She also submitted that
the trial court ought to have accepted the appellant’s version that the deceased may
have been sustained injuries in a motor vehicle collision prior to arriving at their
home .
[18] In light of the test established in Van der Meyden and in consideration of the
arguments advanced, this court may only interfere with the factual findings of the trial
court if there has been a misdirection in the evaluation of the evidence .2Starting with
the finding s of Dr. Laurens during the postmortem examination ; her diagnosis of the
cause of death; the opinion on the nature and extent of the injuries. By any measure,
the deceased had extensive injuries , in fact, she was injured all over her body,
including the internal vital organs. She rejected the proposition that the deceased
may have been injured in a motor vehicle collision. According to her, it would not
have been possible for the deceased to reac h her home after she would have been
injured in a motor vehicle collision. She further opined that the deceased sustained
vaginal injuries after having already succumbed to the other injuries.
[19] The doctor’s opinion found consistency in the evidence provided by Van Rhyn
and Willemse , who were in close proximity to the deceased and the appellant before
they entered their home . The couple remained inside until the appellant exited the
2 S v Hadebe and Others 1997(2) SACR 641 SCA, Paragraph 11
house. Accordi ng to Willemse and Van Rhyn , shortly after the couple entered their
home, they heard the banging sound which indicated that there was a fight going on
inside the house. Willemse was concerned that in this instance, t he deceased was
not screaming, as it was often the case during their fights. It was at that moment
that he called the police, but they did not arrive. Later, the appellant exited the
house , he requested Mamie to call the police and an ambulance.
[20] The version of events related by the appellant must also be given due
consideration, in line with S v Sha ckell3, that, ‘ In view of the standard of proof in
criminal cases, a court does not have to be convinced that every detail in an
accused’s version is true. If the accused version is reasonably possibly true in
substance the court must decide the matter on the acceptance of that version . Of
course, it is permissible to t est the accused’s version against 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
reasonably possibl y be true. ’
[21] The extent and severity of the injuries a ccording to the findings of Dr. Laurens
demonstrate that , in the given circumstance, the proposition that the appellant may
have been injured in a motor vehicle collision was improbable and unlikely . If regard
is also had to the contradictory statements of the appellant regarding the manner in
which injuries may have been inflicted or sustaine d, the version of Van Rhyn and
Willemse , that the deceased was injured inside her house and in the hands of the
appellants , stands incontestable and unassailable . In light of the undisputed
evidence in the state case, it was not necessary for the trial court to make a
determination of the number of blows that were inflicted by the appellant on the
deceased body . The evidence was overwhelming , it established that the deceased
was free of injuries when she entered her home with the appellant , and that all
injuries found on her body were inflicted whilst she was inside her home.
[22] It is untannable that the amount of force that caused her injuries resulted from
her body striking against a door frame or house hold furniture . The suggestion that
3 S v Sha ckell 2001( 4) SA 1 SCA , Paragraph 30
she may have sustained the injuries when the appellant was trying to get her out of
the house has been shown not to be only improbable, but unequivocally false . From
the above, the conclusion reached by the trial court that the deceased was injured by
application of blunt force, at the hands of the appellant cannot be faulted . The trial
court accurately found that the appellant was criminally responsible for the pre
mortem; peri mortem and the postmortem injuries found on the deceased .
AD Sentence
[23] The main guiding principle s in sentencing are well documented particularly , S
v Zinn which is instructive that personal circumstances; that the nature of the
offences committed and the interests of the community have to be decisive in the
sentences imposed . In appeal cases where the CLAA is applicable , these traditional
principles have become integrated into the consideration of a proper approach to
substantial and compelling circumstances that would guide the court in imposing just
and equitable sentences.4 Upon the consideration of principles of sen tencing in
relation to the relevant factors, the court found no circumstances that were
substantial and compelling to justify imposing of a lesser sentence. On the charge of
murder, the appellant was sentenced to undergo fifteen years imprisonment. On the
charge of desecrating a corpse, he was sentenced to undergo four (4) years
imprisonment. The sentences were ordered to run concurrently.
[24] The written heads of arguments and the oral submissions did not present any
significant challenge to the sentences imposed on both counts , save to reiterate the
personal circumstances of the appellant at the time the sentences were considered.
There were no factors pointed out to suggest that the trial court erred or committed a
misdirection in the consideratio n of the sentences it imposed. It was however ,
submitted that the often -complained congestion and overcrowding in the prisons
should be decisive in the appeal against the sentences .
[25] Nonetheless , the personal circumstances , the nature of the offences
committed, and the interes ts of the community remained central in evaluating
4 S v PB 2013(2 ) SACR 533 SCA , paragraph 20
whether the trial court imposed appropriate sentences. Worthy of note was that the
appellant had no previous convictions , he was advanced in age, being 57 years old ;
a primary breadwinner for his family at the time of arrest and that, he had been
diagnosed with a terminal illness. It is imperative to also recogni se the fact that these
offences were committed in a domestic violence en vironment. On reflection o f the
circumstances in which these offences were committed, one is reminded of the
observations of the court in S v Kekana5, that: “Domestic violence has become a
scourge in our society and should not be treated lightly. It has to be deplored and
also severely punished. Hardly a day passes without a report in the media of a
woman, or a child being beaten, raped or even killed in this c ountry. Many women
and children live in constant fear for their lives. This is in some respect a negation of
many of their fundamental rights such as equality, human dignity and bodily
integrity .”6 Therefore the approach to the sentences that were impose d on the
appellant have to reflect the same observations.
[26] A closer reading of the reasoning of the trial court judgment and how it
reached its conclusion on the sentences revealed no error or misdirection in the
application of principles to the uniq ue circumstances of the appellant. The sentences
imposed on both cou nts reflect a considered value judgment , with no factors that
justify interference.
[27] It is within this context and background that the appeal against the convictions
and sentence s should fail.
Order
[28] Therefore, I proposed the followin g order:
The appeal against con victions and sentences is dismissed.
--------------------------
5 S v Kekana (629/2013) [2014] ZASCA 158 (1 October 2014)
6 S v Kekan a, paragraph 20
SIPUNZI AJ
Acting Judge of the High Court
I agree . It is so ordered.
--------------------------
LE GRANGE J
Judge of the High Court
Appearances
For the Appellant :
Ms Kunju
Instructed by : Legal Aid South Africa
Cape Town Local Office
For the Respondent :
Ms Enge lbrecht
Instructed by : The Director of Public Prosecutions
Western Cape
Hearing Date: 30 May 2025
Judgment Date: 11 June 2025
This judgment was handed down electronically by circulation to the parties’
representatives by email.