IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: A280 /2024
In the matter between:
PHELELANI PENI APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Peni v The State (Case no A280 /2024) [202 5] ZAWCHC 250 (20
JUNE 2025 )
Coram: NUKU J and ROUX AJ
Heard : 6 June 2025
Delivered : 20 JUNE 2025
Summary: Criminal – Murder – Self-defence – appellant stabbed by the deceased
with a knife – appellant also stabbed the deceased with a knife and the deceased died
as a result of one of the stab wounds – appellant pleading self -defence – trial court
misdirected itself in convicting the appellant where the evidence led by the prosecution
established that (a) it was the deceased who attacked the appellant first , (b) the
appellant acted in self -defence when he stabbed the deceased , and in the absence of
evidence to establish that the a ttack upon the deceased had ceased when the appellant
stabbed the deceased or the appellant exceeded the bounds of self-defence –
conviction and sentence set aside.
ORDER
1 The appeal is upheld.
2 The conviction and sentence are set a side.
3 The appellant is found not guilty and is accordingly acquitted.
JUDGMENT
NUKU, J (ROUX AJ concurring):
[1] The appellant was charged with one count of murder, it being alleged that on or
about 29 November 2020 and at or near Bashe Street, Saldanha, Western Cape, he
unlawfully and intentionally killed the late Tina Gcwabe (deceased) by stabbing him with
a knife.
[2] The appellant appeared at the Vredenburg Regional Court (trial court) where he
pleaded not guilty to the charge. He was convicted as charged on 23 July 2023. On 6
September 2023, he was sentenced to 12 years imprisonment. He was refused leave
to app eal by the trial court. The appeal was brought with leave obtained from this court
(per Allie J and Van Leeve AJ) on petition. Leave to appeal was granted in respect of
both conviction and sentence.
[3] The evidence on the basis of which the appellant was convicted comprised of the
oral testimony of one eyewitness, the photographs of the crime scene, the post mortem
report as well as photographs taken during the post mortem examination. The appellant
also made certain formal admission s in terms of section 220 of the Criminal Procedure
Act, 51 of 1977 (Criminal Procedure Act), admitting (a) the date and place where the
deceased incident took place, (b) the identity of the deceased, (c) the correctness of the
facts and conclusions as contained in the post mor tem report, and (d) the cause of
death as recorded in the post mortem report, namely that the deceased died as a result
of a penetrating incised wound on the left chest anterior with hypovolemic shock.
[4] A brief plea explanation that was given on behalf of the appellant by his legal
representative was to the effect that (a) the deceased entered the premises where the
appellant was at, (b) the deceased had a knife with him, (c) the appellant acted in self-
defence when he stabbed the deceased, and (d) the appellant was also stabbed by the
deceased.
[5] The evidence of the eyewitness was that: on 29 November 2020 he was at his
house with the appellant, Asavela and Ayanda where they started drinking some
alcoholic beverages from about 15h30. At about 23h00 i n the evening the four of them
decided to go to a house situated in Ryland Street where they sat and continu ed with
their consumption of the alcoholic beverages. The deceased, who was with Zibella at
the time , arrived at this house in Ryland Street whilst the appellant and his company
were still there. The deceased and Zibella wanted to help themselves to the alcoholic
beverages that the appellant and his company had been consuming. This resulted in an
argument after which the eyewitness, the appellant and their company left to go back to
the house of the eyewitness where they had been sitting initially. Upon their return to his
house, they closed the door and sat on the couch. Not long after their return the
deceased came and kicked the door open. Upon his entering the house, the deceased
stabbed the appellant on the head with the knife he had in his possession. The
appellant then in response stabbed the deceased with a knife that had been on a table
in the house . The eyewitness could not say how many ti mes the appellant stabbed the
deceased. He explained, however, that the appellant stabbed the deceased on his front
side of the chest as they were facing each other (that is the deceased and the
appellant) at the time.
[6] The witnesses responded in the negative when asked by the state prosecutor
whether there was a time when the deceased had his back towards the appellant. He
also did not know anything about wounds that the deceased had on his left upper arm
as well as on his back. The evidence was furth er that at some point in time the
deceased ran out of the house and at that stage the witness closed the door again.
Later on, the witness heard someone saying that the deceased was dying. He went out
of his house and saw that the deceased was lying next t o the gate. He took out his
jersey and tried to close the wound that the deceased had. Both the deceased and the
appellant were then taken to Vredenburg hospital for medical treatment .
[7] The prosecutions closed its case after leading the oral evidence r eferred to
above whereafter the appellant applied for a discharge in terms of section 174 of the
Criminal Procedure Act. The application was refused whereafter the case for the
appellant was closed without leading evidence.
[8] The trial court gave a very short judgment where other than recounting the oral
evidence it said the following:
‘The witness who testified for the state was clearly protecting his nephew, this is
evident in all, in most of the concessions that he made inter alia whether the knif e
was on the table, in the drawer, how many times the accused was stabbed.
He testified that he cleaned, he helped the accused with injuries but only testified
with regards to one injury. When it was put to him that the accused had more
injuries, he coul d not really answer that. The witness was not really clear, he was
more trying to protect his nephew, but the fact of the matter there is no
justification for the stabbing.
During the plea explanation the accused offered the defence of self -defence or
private defence, this was not followed up with the evidence so it could not be
tested. If the Court then applies then State v Boesak, in that case the state’s
case was also undisputed as the defence had closed its case before putting,
before having the accuse d testify. If the Court applies that case, then the state’s
case is undisputed. And the accused is therefore found guilty on the count of
murder… ’
[9] Before us it was submitted on behalf of the appellant that the trial court erred in
not evaluating the e vidence to establish whether the prosecution had proved its case
beyond a reasonable doubt. In this regard, reference was made to the decisions of the
Constitutional Court in S v Boesak1 (Boesak) and this Court in S v Van Den Berg and
Another2 (Van Den B erg).
[10] It was submitted on be half of the respondent that the appellant was correctly
convicted because (a) the appellant failed to testify and the questions that were put to
the witness cannot be regarded as his evidence , (b) the evidence established that the
appellant exceeded the bounds of self - defence when considering the fact that the
appellant only had only one stab would on his head whereas the deceased had three
stab wounds, and (c) it was unclear how the deceased sust ained the other two stab
wounds and the appellant failed to take the court into his confidence by explaining how
the deceased sustained these injuries.
[11] There are a number of difficulties with the trial court’s judgment on conviction.
Firstly, the evidence was clear that it was the deceased wh o attacked the appellant who
had been sitting at the home of his cousin, the witness. Unprovoked, the deceased
stabbed the appellant. Th at the appellant stabbed the deceased is thus self -evident
1 2001 (1) SACR 1 (CC)
2 2009 (1) SACR 661 (C)
from the eviden ce presented by the prosecution. The judgment of the trial court does
not engage with this aspect.
[12] The evidence by the prosecution having established that the deceased attacked
the deceased who then stabbed the deceased, the only basis upon which the appellant
could be convicted would be if the evidence established that either the attack had
ceased by the t ime that the appellant inflicted the wound that resulted in the death of the
deceased or he exceeded the bounds of self -defence. On my reading of the record no
such evidence was presented. To the contrary, the trial court was critical of the only
state wit ness that testified on the basis that the witnesses appeared to tailor his
evidence in order to protect the appellant.
[13] Whilst there might be some merit in the trial court’s criticism of the only state
witness, that in itself presents a further difficulty for the prosecution’s case in that there
was no other clear evidence on the basis of which the court could justify that the
appellant either attacked the deceased at a time w hen the appellant’s life was no longer
in danger or that the appellant exceeded the bounds of self -defence.
[14] The trial court clearly failed to do a proper evaluation of the evidence and in that
regard, it misdirected itself. Had it done a proper evalu ation of the evidence it would
have realised that the state had failed to prove that the re was no justification for the
manner in which the appellant acted which unfortunately resulted in the death of the
deceased.
[15] The court’s reliance on the appell ant’s failure to testify as a basis of the
conviction was also mistaken in the absence of evidence that called for an answer from
the appellant. Conviction does not automatically follow from the failure of an accused
person to testify , but will only follow where the prosecution has presented evidence
establishing the guilt of an accused person. In my view, the conviction of the appellant is
unsustainable, and the appeal should succeed. With the success of the appeal in
respect of conviction , it follow s that the sentence must fall away.
Order
[16] In the result I make the following order:
16.1 The appeal is upheld.
16.2 The conviction and sentence are set aside.
16.3 The appellant is found not guilty and is accordingly acquitted.
_____________________________
L G NUKU
JUDGE OF THE HIGH COURT
I agree
_____________________________
W ROUX
ACTING J UDGE OF THE HIGH COURT
Appearances
For ap pellant : Ms Levendal
Instructed by: Legal Aid South Africa , Cape Town
For respondent: Mr Koti
Instructed by: Director of Public Prosecutions , Cape Town