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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PALM RIDGE)
CASE NO: CC 59/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 2025/05/23
SIGNATURE:
In the matter between:
THE STATE
and
NKULULEKO MTSHALI ACCUSED
JUDGEMENT
JOHNSON, AJ:
[1] The accused is an adult male and charged with two counts that were both
allegedly committed on 5 January 2023 at or near Batswaneng Section, Khutsong.
The allegations in the indictment are that he;
1.1 Unlawfully and intentionally killed M[...] M[...] an 8-year-old female child,
the deceased mentioned in count 1, by strangling her;
1.2 Raped her by unlawfully and intentionally committing an act of sexual
penetration.
[2] He is represented by Adv Myamane and pleaded not guilty to both counts.
Although he wanted to remain silent, he made the following admissions in terms of
section 220, of the Criminal Procedure Act 51/1977, ("CPA") during the trial:
2.1 The authenticity of Exhibits A 1 -7, depicting 7 phot os of the deceased
when she was discovered;
2.2 The admissions contained in Exhibit B and its annexures Exhibits C, D
and E;
2.3 The admissions contained in Exhibit F and its annexures Exhibits F1, G,
H, J, K, L and M, which are statements, the contents of which were also
admitted.
[3] E[...] N[...] testified that she was the grandmother of the deceased, and that
she stayed with her. On 5 January 2023 she said that Phakiso, who is apparently
deceased and stayed 3 streets away from her, called her and she left at around
16:00. She went to Phakiso's house a while later but could not find her. She went to
P[...] N[...] and they eventually went back to Phakiso's house with the police, whom
they met on the way. They entered the house and found her dead as depicted in
Exhibit A photos 1 - 7.
[4] P[...] N[...] is the son of the first witness, and confirmed her evidence as
referred to above. He summoned his colleagues and they and the police went to look
for Phakiso. They found him at the Khutsong Hostel and he was ar rested. They also
found the accused at Mzulu's house. After the police spoke to him, he was taken
away.
[5] The version of the accused was put to him quite extensively. It was put that
the accused never smoked drugs until he met Phakiso. When Phakiso wa s high on
drugs, he would have oral sex with the accused. After he had seen Phakiso earlier
the afternoon of 5 January 2023, he came to fetch him between 19 and 20:00 and
took him to his house. When Phakiso entered the kitchen, the accused saw blood on
the floor. He stood back, and Phakiso asked what was wrong with him. They went to
the dining room where he saw the body of the deceased. When he asked Phakiso
what this is, Phakiso slapped him. Phakiso had a firearm on his waist. Phakiso said
that he must un dress and "eat this girl". The accused replied and asked how he can
eat someone with blood. Phakiso assaulted him and slapped him. He then
undressed because he was afraid of Phakiso. He only had his underpants on when
he got on top of the deceased. He then faked sexual intercourse. He did not take out
his penis from his underwear. He had no erection and was afraid. Phakiso assaulted
him and said that he made a fool out of him. Phakiso said that if he was afraid of
blood, he would give him a condom. He gave the accused a condom, but he still did
not have an erection. Phakiso dragged him to the bedroom and blindfolded him with
a cloth. Phakiso then masturbated him. The accused got an erection and ejaculated.
Phakiso chased him away and said that he must never tell anybody about what
happened or what he saw. He threatened to kill the accused and his family if he did.
He ran out of the house and told no one. He went home and locked himself in his
room. He did not want to speak to anyone as he was traumatised.
[6] Tshililo Rambau is a Warrant officer in the South African Police Services
stationed at the Forensic Science Laboratory and the author of Exhibit E. He
confirmed the contents of the Exhibit. His finding which was formally admitted by the
accused, is that the DNA on the swabs that were collected from the body of the
deceased, matched those of the accused.
[7] The evidence of Constables Bobe and Mokoena did not contribute anything
towards resolving the disputes, which is whether the version of the accused i s
reasonable possibly true that his semen was planted on the body of the deceased,
and whether he raped and killed her.
[8] Dr Julian Jacobson is a medical officer who conducted a post -mortem
examination on the body of the deceased on 6 January 2023. He co nfirmed the
contents of his report Exhibit D, which was admitted by the defence. He took a swab
from her outer genitalia and marked it swab 1, one 5cm inside her vagina and
marked it swab 2 and took a sample from her nails. He sealed it in a bag with seal no
PW300109550. He found that there was trauma during the penetration because of
the injuries he found in par 26 of his report: "GENITALIA: There is 1.5cm tear
towards the rectum. There is a bruising and tear of the minor labia with bleeding
around genital area." The blood and bruises are indications that she was alive during
penetration. His notes in par 4 is a further indication of trauma that she endured.
[9] That was the State's case.
[10] The accused testified that he was at home on 5 January 2023. The second
defence witness, as well as the domestic worker were also there. At approximately
14:00 Phakiso came to fetch him, and they went to his house to take drugs. After
they used drugs, Phakiso left to fetch more. He waited for approximately 30 minutes,
and when he did not return, he left and went back home.
[11] At approximately 19 to 20:00 hours Phakiso came to fetch him again. He said
that there was a break -in into his house and they went the re to confirm it. As they
entered, Phakiso slapped him. He took him into the dining room where he saw the
deceased. Phakiso threatened him and said that he must have sexual intercourse
with the child. He went to lay on the child. He was scared. He initiall y testified that
Phakiso pulled out a firearm, but immediately retracted that and said that he only
exposed it to him. He said that if he did not do what he instructed him to do, he will
kill him and his family.
[12] He laid on top of the child because Pha kiso threatened him. He refused and
Phakiso produced a condom. He did not have an erection and told Phakiso that he
saw blood on the child. He slapped him. He laid on the child and made as if he was
complying with his instructions. Phakiso asked why did it look as if the accused was
making a fool of him. He pulled the accused from the child and took him into the
bedroom. He tied his wrists while slapping him and then blindfolded him. He then
masturbated the accused. The accused got an erection and ejaculate d.
[13] Phakiso chased him away and said that he never wanted to see him again.
He went home and into his room, and locked himself inside. He told "Uncle," the
second defence witness, about everything that happened at Phakiso's house.
[14] The police arriv ed during the night and arrested him. He agrees that his
semen was found in the vagina of the deceased, but it is possible that Phakiso
planted it there. He never had sexual intercourse and ejaculated in the deceased. He
did not kill her.
[15] Samual Kwe le also known as "Uncle", testified that he works for the father of
the accused as a caretaker. He and the accused were at work on 5 January 2023 for
the whole day. At around 13:00 the accused went out for a short while, and returned.
He again left the pr emises at around 20:00. He was called out by the same person
who came to fetch him earlier. He returned at about 21:30 and went to where he
slept. When he knocked of at 02:00, he found the accused in his room. He said that
he wanted to tell him something. The accused then told him what happened at
Phakiso's house after he left the second time. He told the accused to tell his father,
but he said he was afraid. He then reported the incident to the accused's father.
They went to Phakiso's house, which was on f ire. They went back to the tavern and
he went home.
[16] Shadrack Mtshali testified that the accused is his grandson, although he is
referred to as his father. On 5 January 2023 he visited his other taverns and came
back between 16 and 17:00. Kwele approac hed him at around 02:00 and said that
they must speak. They went to a certain house which was on fire. He told the
accused that he planned take him to the police station to tell them what happened.
[17] That was the case for the defence.
[18] It is common cause and not in dispute, that the deceased was raped and
killed on the day in question, that the accused was present where she was kept in
the house of Phakiso, that he climbed on top of her, and that his semen was found in
her vagina. The only issue is whether he raped and killed her. His initial defence is
that his semen was planted on the deceased by Phakiso. In argument however,
advocate Myamane argued that Phakiso raped and killed her to take revenge on the
father of the accused.
[19] At the reques t of the State, a trial -within -a-trial was conducted to rule on the
admissibility of a pointing -out and a confession. I will deal with this matter first.
[20] As far as the trial -within -a-trial is concerned, the state called the interpreter
Const. Mlangeni who interpreted for the accused during the proceedings, and Capt.
Theron who conducted the pointing -out and took down the confession. It is not
necessary to evaluate the evidence of Const. Mlangeni as far as the admissibility of
the statement is concerned . It can be judged on the evidence of Capt. Theron alone.
What was clear from the outset was that the Capt. was requested to do a pointing -
out with the accused. He informed the accused of his right to remain silent and not
say anything or make a pointing o ut, and that anything he says will be written down
and used against him. He was also informed of his right to legal assistance. The
rights that were explained, were done in accordance with a form Exhibit P, which
was clearly a preamble in respect of a poin ting out, which is an admission. The
preamble in respect of a confession differs from the requirements for an admission
and should be in accordance with section 217 of the CPA.
[21] In Mudau and Another v S1 the court concluded as follows:
"[14] … It is manifest therefore that implicit in the whole procedure envisaged
by the section is a questioning by the magistrate of the person confessing.
These questions as well as the answers must be recorded for it to be able to
appear from the documen t that the confession was made under the required
conditions of voluntariness, etc. This, of course, is also in accordance with
longstanding practice. It is well known that over a period of many years
departmenta l instructions and the decisions of the Courts have built up a
1 Case No: 1148/2016 29 March 2017 (SCA)
series of guidelines designed to ensure that confessions are in fact freely and
voluntarily made without the exercise of undue influence . … These rights
have since the advent of the Constitution been entrenched in s 35."
[22] The Appeal court at [16] expressed its apprehension to the fact that the
required preamble to the confession was not fully completed. Sections where his
rights to silence and to legal representation had to be explained, and whether he was
in his sound and sober senses, were left blank. Although the magistrate testified that
he could remember the matter and that the appellant answered the questions in the
affirmative, the confession was nevertheless rejected. In this case, we do not even
have a half -completed preamble - there in no pre -amble at all containing any rights
that were explained to the accused, and what his answers to those questions was.
[23] In par [22], the Appeal court also expressed its apprehensi on to the fact that
the magistrate taking down the statement, did not record his observation about
whether the accused was in his sound and sober senses with specific reference to
anxiety, nervousness, joviality, and demeanour.
[24] As the defence had alre ady admitted where the incident took place and there
was no issue between the parties as far as this was concerned, I ruled that the
evidence about the pointing out was not relevant. The State then proceeded and
attempted to lead evidence of a confession t hat the accused allegedly made after
they returned from the pointing out. He again warned the accused of his rights as
before, but made no notes of questions asked or replies given by the accused. He
then made a confession. At the end of the State's case in the trial within a trial, the
State conceded that the confession was not admissible. I dismissed the State's
application to hand in the statement.
[25] As far as the proper approach to the evaluation of the evidence in a criminal
case is concerned, the court remarked as follows is Sithole v S2 –
2 [2011 ] ZASCA 85 para 8,
"The State bears the onus of establishing the guilt of an accused beyond
reasonable doubt and he is entitled to be acquitted if there is a reasonable
doubt that he might be innocent. The onus has to be discharge d upon a
consideration of all the evidence. A court does not look at the evidence
implicating the accused in isolation to determine whether there is proof
beyond reasonable doubt nor does it look at the exculpatory evidence in
isolation to determine whethe r it is reasonably possible true, that it might be
true. The correct approach is set out in the following passage from Mosephi
and others v R LAC (1980 -1984) 57 at 59 F -H:"
'The question for determination is whether, in the light of all the evidence
adduce d at the trial, the guilt of the appellants was established beyond
reasonable doubt. The breaking down of a body of evidence into its
component parts is obviously a useful guide to a proper understanding and
evaluation of it. B ut, 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 isolatio n. 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.'
[26] There is no direct evidence linking the accused to the offences, only
circumstantial evidence and what he said in relation to the event. The court is tasked
with evaluating the evidence, and determine whether it can reason by inference,
which should be the only reasonable inference to be drawn, that the accused
committed the offences.
[27] According to the accused, he was present in the house of Phakiso with the
deceased. He got on top of her, and his semen was found in her outer genitalia and
5cm in her vagina. According to the Doctor's finding, the semen was discharged
when she was still alive. This was not disputed. Prima facie the evidence points to
the fact that the accused raped and killed the deceased.
That is however not enough for a conviction. His evid ence also needs to be
evaluated. If he gives a version that might reasonably possibly be true, he is entitled
to the benefit of the doubt and be acquitted.
[28] It was put to P[...] N[...] that the accused discovered the body of the deceased
at Phakiso's house when Phakiso took him there. Is it reasonably possibly true that
she was dead when he saw her at Phakiso's house? Not according to evidence of Dr
Jacobson. The deceased was alive duri ng sexual intercourse, which left his semen
on the deceased. This evidence is undisputed.
[29] The evidence of Dr Jacobson and his findings, who conducted a post mortem
on the deceased on 9 January 2023 and compiled a Medico -Legal Autopsy Report
Exhibit D , was formally admitted. His undisputed finding is that she died because of
a violent sexual assault and strangulation. His further evidence that he took swabs
from her outer genitalia and another one 5 cm inside her vagina which he marked
PW3001095500, wa s also not disputed. The accused admitted that the DNA
contained in the swabs were his. His defence however is that, although he faked sex
with the deceased on the instructions of Phakiso, his semen was planted there.
[30] The question is whether this can reasonable, possibly be true? The
undisputed evidence of Dr Jacobson is that she had signs of sexual assault. There
was trauma during the sexual intercourse. The fact that she was bruised and bled
during the penetration, is an indication that she was aliv e during the penetration. His
evidence that it was highly unlikely that semen was planted in her vagina, as this
would need special instruments to accomplished, was also not disputed.
[31] A further fact which renders his allegation improbable, is that a lthough he
alleged that he told the second defence witness of what happened there, he never
mentioned that he ejaculated when Phakiso allegedly masturbated him. If he did
ejaculate at that stage, it would have been very important to mention it from the
outset as it would have been an indication that his version, that his semen was
planted, was true and a pointer to his innocence. Yet he never mentioned it, which
makes his allegation that there was any semen to plant, except for the semen that
was discharged into her vagina during sexual intercourse, highly improbable.
[32] The accused further mentioned that he also told the second defence witness
that Phakiso sodomized him. Mr Kwele never testified that the accused ever made
such an allegation to him. It als o appears that no -one was aware of any alleged
violent behaviour of Phakiso towards the accused, despite that fact that they have
known each other for 7 to 8 months, and saw each other about 4 times per week. It
rather seemed that they had a healthy and go od sexual relationship. If not, he would
have mentioned it to "Uncle", like he allegedly did after the deceased was raped and
killed. He also mentioned that Phakiso in fact raped him on several occasions as he
had sexual intercourse with the accused withou t consent. This is also highly
improbable. No -one would endure being raped for so long without reporting it to the
police. Even after his arrest, this was not brought to the attention of anyone.
[33] It was argued that Phakiso raped and killed the deceased because of a
grudge between him and the deceased's father. It was never put to any of the
witnesses that Phakiso raped and killed the deceased. This was only mentioned in
argument.
[34] The instructions of the accused to his advocate, which was put to P[...] N[…],
was that he went home after the incident and locked himself in his room as he was
traumatized and did not want to speak to anyone. He did not give her any
instructions that h e told the second defence witness what had happened, because if
she had such instructions, it would have been put to the witness. In evidence
however, the accused contradicted his instructions and testified that he told "Uncle"
of the incident.
[35] It was put to P[...] that the accused saw a firearm on the waist of Phakiso,
never that he threatened him with it. Mr Kwele testified that the accused told him that
Phakiso threatened him with the firearm. The accused also contradicted himself in
this regard. H e was quick to retract his evidence that Phakiso pulled out the firearm,
and immediately thereafter said that Phakiso only showed him the firearm. This is
also inconsistent with his instructions to his advocate, that he only "saw" it.
[36] The accused test ified that he faked sexual intercourse with the deceased, but
could not explain how he faked it, or how he pretended to have sex with her.
[37] He alleged that Phakiso assaulted him on numerous occasions during the
incident, but this was never mentioned in the alleged conversation with the second
defence witness.
[38] The explanation by Mr Kwele of why he did not tell the police of what the
accused had allegedly told him about the incident, is unconvincing. If the accused
did make such allegations to him, i t would have exited everybody related to the
accused, because it would be an indication of his innocence. Yet he never tells the
police about such a conversation. He testified that he told the accused's father of it,
but that is also improbable because n othing of the sort was brought to the attention
of the police. What is also surprising, is that the conversation and the contents
thereof was not even mentioned to the accused's advocate, because it was not put
to Mr P[...] N[…].
[39] I stress the evide nce of Dr Jacobson, who explained why he concluded that
the deceased was alive when she was sexually assaulted and the semen discharged.
This was not disputed. The evidence of the accused that she was already dead and
his semen planted on her, is therefore not reasonably possibly true.
[39] The Court is satisfied beyond reasonable doubt that his evidence is false and
it is rejected where it conflicts with that of the State. The evidence of the defence
witnesses is rejected for the same reasons. The balance weighs so heavily in favour
of the state that it excludes any reasonable doubt about the accused's guilt.
[40] In the absence of any credible evidence from his side, the prima facie
evidence becomes conclusive proof, of the allegations against him. He is
consequently convicted of both counts 1 and 2 as charged.
JOHNSON AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, PALM RIDGE