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IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]
Case No. CC 33/2017
In the matter between:
THE STATE
and
THANDO MGQOBOZI Accused
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J
[1] The accused was arraigned in this Court on numerous charges relating to the
death of two children who were aged 16 and 12 years old at the time of their tragic
death . The accused was charged with kidnapping, aggravated robbery, two counts
of murder and rape. In respect of the robbery charges , the State invoked the
provisions of section 51(2 ) of the Criminal Law (Sentencing) Amendment Act 38 of
2007 , read with part 2 of Schedule 2 of Act 105 of 1997 on the basis that the
commission of the robbery was accompanied by the use of a sharp instrument which
was used to murder the decease d. In respe ct of the two murder charges, the State
invoked the provisions of section 51(1) of the Criminal Law (Sentencing) Amendment
Act 38 of 2007 read with Part 1 of Schedule 2 of Act 105 of 1997 , in the first instance
on the basis that the murder s were planned or premeditated. In relation to cou nt 4,
also on the basis that the murder was committed after the accused had committed
rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related
Matters ) Amendment Act 32 of 2007. In respect of the charge of rape which is count
5, Section 51(1) of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 3 2 of 2007 read with Part 1 of Schedule 2 of Act 105 of 1997 was
invoked on the basis that the rape was accompan ied by the infliction of grievous
bodily harm. The accused who was , throughout, legally represented, pleaded not
guilty to all the charges and elected not to disclose the basis of his defence.
[2] The State started by presenting the evidence of warrant officer Cupido from the
Local Criminal Record Centre (LCRC) who took crime scene photographs and
collected crime scene exhibits . However, I do not intend to deal with his evidence as
all the chain eviden ce was admitted by the accus ed. The evidence of warrant officer
Somdaka was that on 2 December 2015 in the morning , he received a report that
some children had been found murdered at Nqadu Administrative Area. He phoned
warrant officer Cupido from the LCRC in Butterworth and Mrs Lu pondo from the
Forensic Department in Butterworth asking the m to attend to the crime scene. He ,
together with sergeant Zide thereafter proceeded to the crime scene. When they got
there, community members were already there waiting at a short distance fro m
actual crime scene. They found two bodies of the deceased persons. Both
deceased persons had their trousers tied around their necks. Their bodies had
multiple stab wounds. After some time warrant officer Cupi do and Mrs Lupondo
arrived. Warrant officer Cupido took crime scene photographs and collected exhibits
after which he left. Thereafter Mrs Lupondo removed the bodies from the crime
scene and took them to the mortuary .
[3] He and sergeant Zide were told by the members of the community that they
suspected the accus ed person as well as Xol a Gqibile (Xol a) and Lwando Siguca
(Lwando). They asked the community members to take them to the home of the
accused for purposes of conducting a search at his home. On ar rival at the home of
the accused, they saw a bath tub that was outside in which there was a pair of jeans
soaked in water. The pair of jeans had what looked like blood stains . They entered
the house and found the accused sleeping in his bed. The house had one outside
door and inside there was a door that led to the room in which the accused was
sleeping. There was also another door that led to another room. Only the police
entered the house being himself, sergeant Zide and major Ndeleni who had also
arrived . In the room where the accused was lying on his bed there was another bed
on which no one was sleeping. Accused told them that he stayed alone. He asked
the accused f or permission to search his room and the accused gave them
permission to do so . He and his colleagues searched the accused ’s room starting
with the bed on which he was sleeping but did not find anything in that bed. He then
searched the other bed that wa s in the same room. He found a vodaphone cell
phone that was white at the back with a black screen under the mattress of the
second bed . Accused was present in the room throughout the search . He asked
accused about th at phone and the accused said that h e did not know anything about
it. Warrant officer Somdaka testified that he asked one Nomagcale ka, a member of
the community from the Royal Ho use of Nqadu to assist him in paging through it.
Nomagcaleka pressed the phone and the face of one of the deceased children
appeared on the screen.
[4] Under cross -examination , it was put to warrant officer Somdaka that the accused
and the other suspects were taken from the crime scene in vehicles that were driven
by community members, which he denied. It was further put to him that the search
at the homestead of the accused was only focused on the accused’s bed and the
second bed that was in the room. He testified that he was the one who found the
phone under th e mattress of the second bed in the room of the accused. It was put
to warrant officer Somdaka that the accused was not in the room when the search
was conducted. As a result , he did not see it when the phone was discovered but a
phone was showed to him which was said to have been found under the mattress of
another bed in his room. He was not shown the picture that was said to have
appeared on the screen of th at phone. Warrant officer Somdaka testified that they
found accused sleeping in his room and conducted the search in his presence and
found the cell phone under the matters. That phone was turned on in the room and it
was showed to him depicting the picture of C[...] . In the room it was the accused,
sergeant Zide and major Ndeleni and himself. H is colleagues were all present when
he questioned the accused about th at phone. The members of the community were
outside. When the picture of the deceased appeared on the screen, the picture was
identified by N omagcal eka.
[5] It was put to warrant officer Somdaka that earlier that morning , community
members went to the homestead of the accused and searched his room including
the beds. His res ponse was that it was never brought to his attention that members
of the community had done that . He was only aware of the community members that
went with them to the accused’s home when the phone was discovered . It was
further put to him that during th at search the members of the community did not find
anything in his room. He testified that he did not know about that. It was then put to
him that the phone that was allegedly discovered must have been planted there for
him to have recovered it , which h e disputed and said that they found the phone in
the accused’s presence. Warrant officer Somdaka disputed that other than the
phone he discovered, other phones which belonged to the accused were taken by
the police. Another of the accused’ s version which was put pointedly to warrant
officer Somdaka was that upon the police’s arrival at his ho me in his room , police
conducted a search and told him that they fou nd a phone underneath a mattres s of a
bed other than the bed he was using. The acc used was shown that phone but he
never saw the picture of the deceased. Warrant officer Somdaka testified that police
did not go to the accused’s room with him . They found him already in his room
sleeping and conducted the search in his presence and foun d the phone under the
mattress. They showed him the phone which had the picture of C[...] . Accused was
questioned about it still in his room and denied any knowledge of it . The picture was
identified by a community member as being the picture of one of the two deceased
persons . The father of the deceased also arrived and identified the phone as being
that of C[...] , one of h is daughters. Nomagcaleka was asked to come into the sitting
room to only assis t in paging through the phone.
[6] Warrant officer Somdaka denied that communit y members were present inside
the accused’s room when the police conducted the search and maintaned that
members of the community were outside. It was put to him that the seco nd bed was
used by a student who was schooling at X[...] High School who was not from that
locality but stayed at the accused’s home to be closer to school. Warrant officer
Somdaka said that the accused did not tell them that on that day. It was furth er put
to him that the said scholar finished writing the examination s towards the end of
November and returned back to his home . He had already left before the 1
December 2015.
[7] The evidence of Dr Potelwa was that on 4 December 2015 he conducted a pos t
mortem examination on the body of S[...] K[...] (S[...]) who was a 12 year old girl. His
findings were that the deceased had seven stab wounds to the face and six stab
wounds to the anterior lower neck. These wounds were incised wounds, meaning
that they had smooth edges but were not very deep. There were also eight wounds
in the anterior of the chest wall with multiple stab wounds to the heart. There was
also a vaginal tear in the posterior wall of the vagina which extended to the
perineum. Her trousers were tie d around her neck but not tightly enough to have
caused her deat h. He testified that S[...] died of multiple stab wounds. Because of
the vaginal tear he took specimen from the vagina of S[...] for forensic analysis .
[8] Dr Potelwa also testified that on that same day he conducted a post mortem
examination on the body of C[...] K[...] (C[...] ). H is findings were that C[...] had
twenty stab wounds in the anterior chest wall, eight stab wounds in the anterior
abdominal wall, two stab wounds at the back and most of these wounds had
penetrated into the chest an d abdominal cavities. As a result, there were multiple
stab wounds to the lungs, to the heart , the aorta and to the liver . Her pair of trousers
was tied around her neck but not tightly enough to have been the probable cause of
her death. He also took va ginal specimen for rape as he did in respect of S[...].
[9] The evidence of Xola Gqibile (Xola) was that he was a friend of the accused
whom he had known for many years. They stayed in the same locality where they
grew up together and had a very good rel ationship. He testified that he did not and
still does not drink alcohol but the accused drank alcohol before his arrest. On 1
December 2015 there was an initiation ceremony at a certain homestead at Lower
Nqadu locality . He and the accused are from Upper Nqadu locality . He , together
with the accused and Lwando Si guca (Lwando) went to that homestead at about
20:00 at night . They started in a room that had youngsters as he was looking for
Yamkela, his younger brother. When they arrived, the accused and Lwando had not
yet consumed alcohol. They only started drinking alcohol there. They saw Yamkela
there but Yamkela ran away as they had gone there to fetch him. They then went to
the room where there were adults which w as where alcohol consumption was taking
place . The three of them sat together in that room and the accused and L wando
started drinking alc ohol which was brandy, mqomboti and beers. After some time ,
they went outside of that room . While they were outside , C[...] and the accused met
and had a conversation in front of the big house. The premises were well lit with
electricity. C[...] was with other girls at the time he met the accused. He then went
into the room which had youngs ters and he never saw the accused again. He knew
C[...] and he had known her for a very long time as she grew up there. The accused
also knew C[...] but he was not aware of any relationship between them. He also
never saw C[...] again after he had seen her talking to the accused . After having
been in the room where the youngsters were , he also went to the room where the
drinking took place but the accused was not there. He was with Lwando and the two
of them looked for the accused for about 30 minutes. They even called him on his
phone but they could not reach him. At some point they gave up and went to their
homes without him . The time was already after 03:00 am when they left that
homestead.
[10] He arrived at his homestead at about 06:00 that morning. At about 07:30 am he
went to the shop to buy himself a drink. On his way back from the shop he came
across Lwando. Lwando asked him if he had heard that C[...] had passed away to
which he said he had not heard anything. The y parted ways and he went home but
after he arrived home, community members in two bakkies arrived. Some men
alighted and asked him who w as present at the homestead at Lower Nqadu locality
in which there was a traditional ceremony. He was then taken to the crime scene in
one of the vehicles. Lwando and the accused were brought to the crime scene
whilst he was already there. He was questioned about the two deceased. They were
questioned separately in the presence of the police. They were then taken to their
homes and at his ho me, nothing was found. After his ho me was searched , they
were taken to the accused’s ho me which was also searched . A cellphone which was
a black and white vodaphone smart phone was discovered. When t hat phone was
turned on, the picture of C[...] appeared. He testified that accused was present in the
room when the phone was discovered but there were also many other people there.
He testified that the phone was taken to the living room where it was switched on.
The house was also searched and accused’s clothing was also discovered soaked in
water in a bath tub behind the door. It was a vest and trousers which had blood
stains .
[11] Xola testified that when they were at the ceremony , accused was wearing the
jean trousers that was soaked in water and a lumber jacket that was black. He did
not see what the accused was wearing underneath the lumber jacket. Police were
present when the phone was discovered under a mattress but he did not see exactly
who discovered it. The accused was asked about the phone and was assaulted and
handcuffed . Accused was assaulted by the police and members of the community
with fists and open hands inside the house. After the discoveries that were made at
the accused’s homestead, Lwando’s home was also searched but nothing was
discovered at Lwando’s ho me.
[12] Under cross -examination , Xola testified that accused was fetched from his home
and taken to the crime scene by community members. He was present w hen
accused’s ho me was visited for the second time during which it was also searched.
Accused was present when his (Xola’s) home was searched because from the crime
scene the community members and the police took them to his home first which was
searched but nothing was found . From his home the group proceeded to the
accused’s ho me. The door was opened and a mattress got lifted and th e cellphone
was discovered. They were all not handcuffed when they left the crime scene.
Accused was only handcuffed after the phone was discovered. When they were at
the homestead where there was a traditional ceremony, he saw accused talking to
C[...] but at no stage did he see S[...] with the accused. Xola disputed the version of
the accused that he (accused) left after 12:00 am accompanied by Lwando . He
further denied that after having accompanied him , Lwando turned back at the gravel
road and returned to that homestead . Xola explained that he and Lwando looked for
the accused, they could not find him and even called him on his phone but they
could not get through. They then left after 3:00 am without having found him. H e
further testified that there would have been no need for Lwando to accompany the
accused to the gravel road as the gravel road was just outside the gate of th at
homestead . Furthermore, he was always with Lwando looking for the accuse d. Xola
further testified that there was one bed in the accused’s room but there was also a
mattress that was behind the door. Xola also testified that he knew accused’s
girlfriend and as far as C[...] was concerned , he saw them together for the first ti me
in that ceremony.
[13] The evidence of Mr K[...] was that he was the biological father of the two
deceased children. C[...] and S[...] had asked him for permission to attend the
traditional ceremony which was taking place at a homestead in their community . He
gave them permission to attend that ceremony. They left at 19:30 and they never
came back. In the morning at about 4:00 am he re ceived a telephone call in which
he was told that his children were found dead in a forest. The forest is in the same
locality but closer to the homestead that had a traditional ceremony. He and his wife
proceeded to the crime scene where they found the dead bodies of their children
lying close to each other. When they arrived at the crime scene , they found
community members and the police already there. The community members
enquired from the young men of the locality what they had seen the previous ni ght.
The youn g men told them that the last time they saw the deceased was at about
2:00 am at the ceremony and that was also the last time they saw the young men
from Upper Nqadu locality .
[14] Mr K[...] testified that he then said that the Upper Nqadu young men should be
fetched so that they could tell them when was the last time they saw the deceased.
The members of the Lower Nqadu community fetched those three Upper Nqadu
young men who were mentioned amongst wh om was the accused. He remained at
the crime scene when those young men were fetched. The first to be questioned was
the accused but he was not part of the group of locals that questioned the accused.
At some point he also got an opportunity to speak to the accused and the accused
said to him that he knew that he was C[...] ’s father. He asked the accused about a
blood stain that was on the zip of his jacket and the accused told him that he had a
wound on his knee and that blood stain came from that wound. He asked the
accused to show him the wound. The wound was on the accused’s right knee and
he observed that it was similar to the wounds on the bodies of the deceased.
[15] The police said that the homes of the young men should be searched . He then
went home for a prayer session. He later received a call from sergeant Zide asking
him to come to the home of the accused to identify a cellphone. When he got there
he found the police with other people standing in front of the house. Accused was
present and the other two young men , Xola and Lwando were also present.
Sergeant Zide showed him a cellphone and he identified it as that of his daughter,
C[...] . It was a vodaphone phone which was white at the back and black at the front.
After sergeant Zide switched it on , C[...] ’s photo appeared on the screen. He took
out his own phone and called C[...] ’s number and that phone rang. The police said
that they should also go to Lwando’s home to conduct a search. Sergeant Zide told
him that the phone was found between a base and a mattress of the accused. There
was also clothing in the accused room which the accused was wearing the previous
night. That clothing had blood stains. He personally saw that clothing in the
accused’s room in a bath tub wh ich was behind the door soaked in water. He was
told by sergeant Zide that the accused had said that he had picked up C[...] ’s phone
the previous night. They then proceeded to Lwando’s home where a search was
conducted but nothing was found.
[16] Under cross -examination, Mr K[...] testified that the accused, Xola and Lwando
were fetched by community members and brought to the crime scene but the police
warned the members of the community not to beat them. He did not go with the
people that fetch them but remained at the crime scene. He would not comment
when it was put to him that when the community members that fetched the accused
also searched his homestead and found nothing. He , however, added that the locals
came back with the young men and that they had not gone to search their homes.
He testified that he went into the accused’s room and saw the bath tub with clothing
soaked in water and he observed that the water had blood and the trousers had
blood stain s. When it was put to him that th e evidence of warrant officer Somdaka
was that the bath tub was outside, Mr K[...] testified that when he got to the
accused’s homestead, the bath tub was inside the house. When he got there, the
police and community members were outside the house with the accused. He
further testified that when the locals came back to the crime scene with the accused
they were not carrying anything and the accused was not carrying anything. It was
put to Mr K[...] that the accused had sustained an injury to his knee five days before
the traditional ceremony to which he did not comment .
[17] The evidence of major Ndeleni was that at the time of the incident in this matter
he was the commander of detectives in Willowvale. On 2 December 2015 he was at
work when a report was received that certain young girls had been found dead in a
forest in Nqadu. He asked sergeant Zide to attend to the incident. Sergeant Zide
and other officers went to the crime scene. He also went to the crime scene in a
separate work vehicle. He found sergeant Zide with members from the visible
policing unit already there. Sergeant Zide showed him the crime scene and he saw
deceased bodies of two young girls. The bodies were about three metres apart.
Warrant officer Cupido from the L CRC arrived and took crime scene photographs
and collected exhibits. Members of the c ommunity who were there at the crime
scene said that they suspe cted three young men being the accused, Lwando and
Xola. The members of the community left to look for the three young men. He
together with sergeant Zide and another group of locals went to the home of the
accused. They found him asleep. The locals waited outside while he and sergeant
Zide got inside the house and woke him up.
[18] They introduced themselves and told the accused that they were investigating
the death of the two young gir ls. They asked the accused for permission to search
the house in which he was sleeping. Sergeant Zide searched the room starting with
the bed in which the accused was sleeping. During the search it was sergeant Zide,
himself and the accused who were inside the room. When sergeant Zide lifted up
the mattress , he found a cellphone and asked the accused whose phone that was
and the accused did not respond. He then asked the accused who then said that he
had robbed it fro m C[...] . When sergeant Zide turned the phone on , C[...] ’s pict ure
appeared. Sergeant Zide pag ed through the phone and a picture of C[...] ’s father
appeared. C[...] ’s father was called and he came and identified the phone as that of
C[...] . When C[...] ’s father was shown the pho ne they were all in the house.
[19] Under cross -examination major Ndeleni disputed that the accused was fetched
from his hom e and brought to the crime scene. He denied that warrant officer
Somdaka was the one who found the phone between the mattress and the base of
the bed. He also disputed the evidence of warrant officer Somdaka that he found the
phone in another bed in the room of the accused saying that there was only one bed
in that room. He also disputed Xola’s evidence about how the phone was found. He
disputed Mr K[...]’s evidence that the accused was fetched from his ho me and
brought to the crime scene. He also denied Xola’s evidence that the accused was
assaulted by community members and that the police tightened his handcuffs. It
was put to major Ndeleni that the version of the accused was that he was fetched
from his home by members of the community who first searched his home and found
nothing after which he was taken to the crime scene. Major Ndelelni disputed th e
accused’s version of events.
[20] The evidence of sergean t Zide was that he was the initial inv estigating officer of
this case before it was handed over to sergeant Sogwangqa. On 2 December 2015
he was at work when he received a report about this matter from warrant officer
Somdaka. He , together with warrant officer Somdaka proceeded to the crime scene.
The crime scene was located near a small forest next to the mealie fields. They
found members of the community already there at the crime scene. The deceased
bodies had stab wounds. C[...] was strang led with a jean trouser around her neck
and S[...]’s hands were tied to the back with a belt. Warrant officer Cupido from the
LCRC in Butterworth arrived and did his work after which Mrs Lupondo from the
Forensic Unit removed the bodies and took them to the mortuary. Major Ndeleni
also arrived and the members of the community spoke about young men from Upper
Nqadu locality who had attended the traditional ceremony. The locals said that those
young men should be fetched and brought to the crime scene. Those were the
accused, Xola and Lwando.
[21] Before they could go to look for the three young men , Xola arrived with some
local young men and they reported that they could not find the accused and Lwando.
It was decided to go to Xola’s homestead to conduct a search. Xola’s bedroom was
searched and nothing was found. They , together with community members
proceeded to Lwando’s home and found that he was not there and there was no one
there. They went to the accused’s ho me and knocked in a flat roofed structure which
was not locked and they pushed the door open. They got inside and saw a door that
led to another room. They knocke d at that door and there was no response. The
door was also not locked and they pushed it open. He , together with warrant officer
Somdaka and major Ndeleni entered the room but told other people to wait outside.
They noticed someone sleeping on a bed. The said person confirmed that he was
the accused person. After introducing themselves and telling him why they were
there , they ask ed him for permission to search his room. The accused was in his
clothing whe n they woke him up. He started searching and at some point , he lifted
the mattress of the bed in which the accused was sleeping. After lifting up the
mattress he saw a vodaphone cellphone that was white with a black screen. At that
time, inside the room it was himself, the accused, warrant officer Somdaka and
major Ndeleni. He turned the phone on and the picture of C[...] appeared on the
screen. He just tapped it and the screen saver which was C[...] ’s picture appeared.
He asked the accused where he got the phone from and the accused said that he
had robbed it from the deceased after he had raped and killed her. He then asked
the members of the community for C[...] ’s father’s phone numb er. He got it and
phoned Mr K[...] who then arrived. Mr K[...] identi fied the phone as that of C[...] .
[22] He then took that phone together with three other phones that they found there.
The accused said that the three other phones were his. He then saw a bath tub in
which there was some clothing which was soaked in water that looked like it had
blood. He lifted up the pair of trousers that w as soaked in the bath tub. He also took
it for investigation. All of this happened in the presence of the accused. He then
arrested the accused. Under cross -examination sergeant Zide denied that the
accused was brough t to the crime scene by members of the community. He said
that he was present when members of the community said that the suspected young
men should be fetched and brought to the crime scene. He disputed Mr K[...]’s
evidence that the accused was fetched and brought to the crime scene for
questioning. He , however, confirmed that the police and members of the community
went to Xola’s home but said that when they went to Xola’s home, the accused was
not part of the group that went to Xola’s home. He disput ed Xola’s evidence that the
accused was present when his home was searched but confirmed that Xola went
with them to the accused’s home. He had made a mistake in his statement when he
said that the members of the community fetched the accused and insisted that it was
only Xola who was fetched by community members and brought to the crime scene .
He confirmed that he was with warrant officer Somdaka throughout but denied
warrant offi cer Somdaka’s evidence that he was the one who found the phone under
a mattress. He insisted that he was the one who found that phone under the
mattress of the bed in which the accused was sleeping.
[23] Admissions in terms of section 220 of the Criminal Procedure Act1 were entered
into the record. In those admissions the accused admitted that he had sexual
intercourse with C[...] on 1 December 2015. He admitted the chain evidence relating
to the samples and s pecimen s that w ere collected and sent to the forensic laboratory
for DNA analysis and their safe custody throughout. The accused also admitted the
Biology Report compiled by warrant officer Heyns and her conclusion that he was
positively linked to the vaginal swab that was ta ken from C[...] .
[24] Accused opened his case by testifying in his defence. He testified that he is 31
years old, born on 26 January 1995. Before his arrest , he resided in Wi llovale at
Upper Nqadu locality. He testified that he knew C[...] in that in Ma y 2015 following
his return from Cape Town he had a love relationship with her. He spent the day on
1 December 2015 in his locality. He later attended a traditional ceremony at a
homestead at Lower Nqadu locality with Xola and Lwando . He met C[...] there
whom he did not know would also be in attendance. He had several conversations
with her several times as lovers because they would meet and separate and meet
again as there were many people there. In one instance they agreed to go out of the
yard of that homestead. They got out of the yard and had a conversation about her
going with him to his ho mestead . However, C[...] refused to go with him indicating
that it would not be possible for her not to sleep at her home because her father was
very strict . He said that there wa s a hedge between the yards adjacent to that
homestead. They went to that hedge and sat down and continued with their
conversation. After a while , they engaged in consensual sexual intercourse.
However, they did not stay for too long and C[...] left with another group of girls after
they had returned to the ceremony .
[25] The time was between 22:00 and 23:00 when they engaged in consensual
sexual intercourse. He saw C[...] again at the ceremony in the yard after they had
had sexual intercourse . He left the ceremony at about 02:00 am but he could not
remember the exact ti me. When he left he asked Lwando who was the one who was
1 Section 220 of the Criminal Procedure Act 51 of 1977 provides that: An accused or his or her legal
adviser or the prosecutor may in criminal proceedings admit any fact placed in issue at such
proceedings and any such admission shall be suf ficient proof of such fact.
close to him at the time and with whom he had been drin king alcohol to accompany
him up to the gravel road as he was not familiar with that area. Lwando
accompanied him up to the gravel road after w hich he turned back. He w ent home
but he was not sure what time it was when he got home. When he was told that
Xola’s evidence was that Xola and Lwando looked for him and even called him on
his phone but could not get through, he said that he did not know that they looked for
him and that the battery of his phone had died. He added that when he left , it had
been a while since he last saw C[...] .
[26] He did not know S[...] and he never saw her at the ceremony. When he got
home he got into his room and slept. He woke up at 07:00 and prepared as he
needed to go to town. He had already finished taking a bath when he received a call
from Lwando. At this stage he had charged his phone hence he was able to receive
Lwando’s call. Lwando told him that he was in another homestead near his home
and asked him to urgently meet him at that homestead. He proceeded to that
homestead which is close to his homestead. Lwando told him ab out the death of
C[...] asking him if he had heard that his girlfriend had passed on. He then asked
which girlfriend was Lwand o referring to and Lwando said that it was C[...] . He was
shocked by this news and while they were talking about that , Xola arriv ed coming
from a shop as they were going out. Thereafter they parted ways, each one going to
his home. When he got ho me he decided to clean his room. After the was done
cleaning his room and making up his bed he decided to wash all his dirty clothes
especially the bright coloured ones.
[27] He put all the bright clo thes in a big metal bath tub and soaked them with the
intention of wash ing them when he returned from town. At some point six men
arrived at his home. One of the m en told him about the death of two children one of
whom was C[...] . This man told him that he was required at Lower Nqadu locality and
they were there to fetch hi m. They requested to get into his room and asked him
about what he was wearing at the ceremony the previous night . He told them that he
had soaked the pants he was wearing on that day. They took his camouflage
trousers which happened to have some blood stains as he had an injury on his knee
after falling on a broken glass. Those men searched his room and left his clothes
scattered. After conducting the search , those men took him with them. They told him
to lock his flat and took him in their vehicle to the crime scene . There were many
community members , vehicles and police officers at the crime scene . When he got
there, Xola and Lwando were already there.
[28] Accused further testified that he did not meet Mr K[...] at the crime scene. He
only got to meet him at his home. At the crime scene he showed the community
members his wound on his kne e but he never interacted with the police there . At
some point it was decided to go to his home to conduct a search. He was taken in a
vehicle to his home and community members also came to his ho mestead . The
vehicle he was in was driven by major Ndeleni. They first started at Xola’s
homestead which was searched and ther eafter proceeded to his homestead . When
he was earlier taken to the crime scene, he had locked his flat and the key was in his
pocket . Sergeant Zide pushed the door open instead of asking him to open it. Police
and community members got inside but Xola and Lwando remained outs ide. He was
also left outside. He was not inside the room when the phone was allegedly found.
Police told him that they had found a phone between a mattress an d a bas e in the
bed his was slee ping in. He denied the evidence of the police that they found him
sleeping in his bed saying he met them at the crime scene. He was asked about the
evidence that there was a bath tub which had trouser s with blood stains that was
soaked in water . Accused said that it could be true but the blood was his own blood.
His pair of trousers were stained with blood as he was wearing it the previous night
at the ceremony. The wound on his knee beca me septic and wet which caused the
stain in his trousers. He denied kidnapping and killing the deceased , robbing C[...] of
her phone and denied raping her.
[29] Under cross -examination , accused testified that he had a love relationship with
C[...] . He said that he was born in Cape Town and would come to Nqadu for a visit
only during school holidays. In 2015 from May he stayed in Nqadu until his arrest in
December 2015 . He got to know that C[...] stayed in Lower Nqadu after they met at
a certain s hop in May 2015 where she was doing hair for somebody. He and C[...]
started a love relationship on that day . They never exchanged phone numbers
because his girlfriend had access to his phone. Their mode of communication was
only t hrough texting each other on facebook. H is girlfriend did not have access to his
facebook because she did not have the password. Although t heir relationship started
in May 2015 , he never saw her again until they met at the ceremony in December
2015. He described their love relatio nship as not having been serious. They could
not meet because her father was very strict. He was not sure if she was schooling
but he later said that she could have been schooling with his sister at X[...] High
School. He could not remember her grade a nd he did not know her birthday.
[30] He testified that he had never been to C[...] ’s home and she was not allowed to
leave her home because he r father was strict. He never tried to meet C[...] after
school because his main girlfriend was also schooling with her. C[...] did not tell him
that she had been given permission to attend the traditional ceremony that night .
Accused testified that he only got to know Xola after his return from Cape Tow n as
Xola grew up in another locality. They beca me friends as they would meet at Xola’s
home where liquor was being sold and they would sometimes walk together. He
knew Lwando from Cape Town. He and Lwando bought half a bottle of white brandy
at Xola’s ho me and they were drinking it on their way to the ceremony. They went
there with Xola and they were looking for Xola’s brother. They went to that ceremony
at about 20:00 that night . He saw C[...] outside in that homestead for the first time
since May 2015 and he spoke to her. He saw he r three times that night. The second
time he saw her was in a flat because it was drizzling that night. The third time he
saw her was when he asked her to leave with him . They went through on e of the
gates in that homestead and went next to a hedge. They talked and ende d up having
consensual sexual intercourse after they had kissed. He never asked her for an
engagement in sexual intercourse. They just had sexual intercourse. He said that
this was because C[...] had a choice to say no if she did not want to have sexual
intercourse with h im.
[31] After having sexual intercourse, they went back into that homestead and C[...]
went into the flat where other girls were. He went to the house whe re he had left
Xola and Lwando and found them there with other young men. At some point he
decided to leave . He asked Lwando who was still going to remain there to
accompany him up to the gravel road which he did . He did not tell Xola that he was
leaving because he could not find him. Accused testified that Lwando knew about his
relationship with C[...] . When he was asked if Lwando would confirm that he had a
relationship with C[...] , he said that that would dep end on Lwando. He conceded that
it was never put to Xola that his phone battery died when Xola sai d that they phoned
him but their calls could not go through. Accused was a sked if before he left that
homestead , he went to C[...] to tell her that he was le aving. He said that he did not
need C[...] ’s permission for leaving. He also conceded that it was never put to
sergeant Zide that his pair of trousers that w as soaked in water which looked like it
had blood was caused by the bandage as a result of the inj ury on his knee. He also
confirmed that C[...] had never been to h is place. He could not explain how C[...] ’s
phone was found in his room. He further said that his wound on the knee was an old
wound. On being asked questions by the court , he testified that his wound was not
deep. It was just on the knee cap and he never took it to any clinic or health facility .
[32] The evidence of the State was given by five witnesses as it relates to the events
leading to the arrest of the accused. I consider it prudent to start with the
inconsist ent aspects of the State’s evidence. All three police officers being warrant
officer Somdaka, sergeant Zide and major Ndeleni testified that from the crime
scene , they went to Xola’s home, searched and found nothing linking him to this
offence. From Xola’s ho me they proceeded to accused ’s homestead and found him
sleeping in his bed. After waking him up and introducing themselves , they asked him
for his permission to conduct a search, they search ed his room and found the phone
between the mattress and a base of the accused’s bed. All this took place in the
accused’s presence. They also found clothes with blood stains soaked in water in a
bath tub. However, there were also a few inconsistencies between the evidence of
the three police officers even among themselves.
[33] When the evidence of the police is j uxtapose d with the evidence of Mr K[...], the
father of the deceased , some inconsistences become evident. In essence , Mr K[...]’s
version was that following the discovery of the bodies of the deceased at a forest in
Lower Nqadu, the community took a decision in the presence of the police that the
three young men that the community suspected of complicity in the death of the
deceased should be fetched and brought to the crime scene for questioning. This
was done. After the three suspected young men were brought to the crime scene ,
they were questioned and a decision was taken to go and conduct a search at the ir
homes being the accused, Xola and Lwando. Mr K[...] testified that he did not go to
the young men’s homes but remained at the crime scene. At some stage , he went
home for prayers . He later received a call from sergeant Zide asking him to come to
the ho me of the accused. He went to the home of accused and on arrival there , he
was shown a phone which he identified as that of C[...] . The evidenc e of Xola was
along the same lines , the common thread being that on Xola’s evidence as well,
accused was bought to the crime scene. After they were questioned at the crime
scene, a decision was taken to search the ir homes. His home was search ed first
after which the members of the community together with the police proceeded to the
home of the accused, with the accused. On Xola’s evidence , accused , Lwando and
himself were taken from the crime scene a result of which , accused was present
when his ho me was search. He, Xola was also present when the ho me of the
accused was searched. Accused’s evidence in this regard was also that he was
taken to the crime scene and then fro m the crime scene they were all taken to Xola ’s
home which was searched and after that they went to his home which was also
searched.
[34] I find the evidence of Xola and Mr K[...] considered together with that of the
accused , at least as it relates to th e accused being taken to the crime scene before
police and members of the community returned to his house to conduct a search , to
be more probable. I do not think that the three police officers were merely mistaken
in giving the court the sequence of even ts in the manner they did , which sought to
suggest that at no stage was the accused brought to the crime scene . The court’s
attention was drawn to their corroboration of one by the other in this respect . I,
however, have a disconcerting feeling that the police in this regard were trying to
cover the impropriety of remaining at the crime scene and allowing members of the
community to look for and bring the suspected young men to the cr ime scene. This
conduct was in appropriate and unprofessio nal. In conducting themselves in th at
manner , the police could easily have compromised this case out of mere lack of
foresight, into the importance of conducting their investigative work with the care,
diligence and professionalism that it requires. This is mor e so in a case as serious as
this one where two innocent children lost their lives due to criminality , in an
unimaginably brutal fashion. Worse still , vigilantism could easily have happened if
the members of the community of Lower Nqadu had decided to tak e the law into
their own hands and deliver mo b justice to the suspects . Police cannot and should
not allow members of the community to look for suspects on their own and bring
them for questioning as that could easily have disastrous consequences.
[35] That having been said , I do accept that as Mr K[...] and Xola testified , accused
was fetched from his home by members of the community and taken to the crime
scene where he was questioned by members of the community where pol ice, while
present, remained supine, which, on its own was shocking ly inappropriate . During
the questioning by members of the community , Mr K[...] was, on his evidence, not
amongst the members of the community that questioned the accused initially . This
was because there was somebody who arrived and who wanted to be shown the
bodies of the deceased. Mr K[...] attended to the said gentleman and showed him
the bodies of his deceased children. Mr K[...] then came back to the group of the
members of the community who were questioning the accused. When he came
back to the community members that were questioning the accused, he and the
accused had occasion to look each other in the eyes. He then asked the community
members to stop with the questioning momentarily so that he could talk to th e
accused. He then established from the accused, if the accused knew him and the
accused confirmed that he knew that he was C[...] ’s father. His evidence was also
that he then said to the accused: “ My spirit tells me that you have killed my children.
Even after 30 years you will say that I did say that you are the one who killed my
children. ” After this painful conversation, he told the members of the community that
they could continue questioning th e accused.
[36] With all of this exchange on the evidence of Mr K[...], having taken place at the
crime scene, the three police officers told this Court that accused was never t aken to
the crime scene. The police ’s evidence that if the community members t ook the
accused to the crime scene, it di d not happen in their presence could not possibly be
true. This is so because the chronology of events as narrated by Mr K[...] was that
when he was called to the crime scene, he found the police already there. Bes ides,
Mr K[...]’s evidence was that the police were present when the accused sought to
explain the blood stains in his lumber jacket that were noticed by a certain Mr
Magafela. After the blood stains were noticed , Mr K[...]’s evidence was that he then
came close to the accused and asked him how he got to have blood stains in his
clothing. Accused told him that he had an injury on his knee and Mr K[...] added that
he then asked the accused to show him that injury and he saw i t on the accused’s
right knee. He then formed an opinion that the accused’s wound was caused by a
knife and that it was similar to the wounds inflicted on his deceased children . He
added that during th at interaction with the accused, the police were presen t and it
took place at the crime scene.
[37] What bec ame clear wa s that not only did the three senior police officers allow
members of the community to be at the forefront of the actual questioning of the
suspects , they also left the questioning of the su spec ts entirely to the members of
the community. This was highly irregular as it is the duty of the police to investigate
crime. That they allowed the suspects to be questioned by members of the
community in their presence was unfortunate and was a high degree of
unprofessionalism. What was worse wa s the police all disavowing the presence of
the accused at the crime scene . This was clearly done to hide the ir indiscretions and
lack of foresight on the significance of properly handled investigations in the
evolution of a criminal trial. M ost importantly, its essentiali ty on whether or not , at
the conclusion of a criminal trial, the court returns a guilty verdict or that of an
acquittal. An acquittal is often not a judgment on whether the criminal who is charged
is the one who actually committed the offence. It is often a determination and a
judgment on the thoroughness and professionalism with which an investigation was
conducted. By this I mean a clearly guilty person often walks free because of the
failures of the police to do their job properly. I am mindful of many other police
officers who go beyond the call of duty to do their investigative work with
professionalism and care which result in convictions across our country. However, it
would be remiss of this Court not to comment and express its disquiet when it
beco mes aware of elements of improper conduct on the part of some police officers.
It is worse when some of the evidence seems to have been suspiciously told as if it
was first discussed.
[38] The accused ’s version wa s that he was fetched by the me mbers of the
community from his home. He testified that those members of the community first
searched his room turning the place upside down and leaving clothes scattered all
over the place. This version was never put to an y of the State witnesses . The
importance of the failure of the accused to put this version to the police officers when
they testified is that their evidence was that they conducted the search and found
C[...] ’s phone in the room of the accused . Surely if they got there and found the
accused’s room upside down as he testified , it wa s very important that the accused
himself would have told those questioning him at the crime scene that his room was
already searched when it was resolved by the community member s that the ho mes
of the three suspects be searched. It was also important that in addition to that , it be
put to the police that because of the search that some members of the community
had conducted earlier, his room was upside down when the police searched it. While
the accused lied in this court a number of times, I find his evidence that he was
fetched by members of the community from his home and taken to the crime scene
to be more probable , especially when considered together with that of Mr K[...] and
Xola. He, however, lied when he said that those community members first searched
his room and left his clothes scattered . That was pate ntly false and a de liberately
crafted strategem to mislead the court for purposes of creating the false impress ion
that the phone could have been put where the police found it by a person other than
the accused himself .
[39] This brings me to the second visit to the accused’s home by members of the
community who were, on this occasion, led by the three police officers. During this
visit to the accused’s ho mestead , all three police officers testified that only the three
of them entered the accused’s room and conducted the search in his presence .
Save for warrant officer Somdaka , their e vidence was that they found the cellphone
belonging to C[...] under the mattress of the bed on which the accused was sleeping.
The evidence of warrant officer Somdaka was that he was the one who found the
phone under mattress of another bed in the accused’ s room . Similarly, the evidence
of sergeant Zide was that the phone was found by him under the mattress in the
accused’s room . Both of them sa id that they found it in the room in which they found
the accused sleeping with one saying under the mattress of the accused’s bed while
the other said he found it under the mattress of another bed in that same room .
[40] I do not consider t he question of which one of the two police officers actually
found the phone as that material considering that a substantial period of time had
elapsed since they searched that room . It makes no difference as to who was
mistaken as far as who actually foun d it. What is important is that the deceased’s
phone was found in the accused’s room at a time when he was staying alone in that
homestead , a few hours after the death of the deceased . All three police officers
testified that accused was present when the p hone was found in his room. Xola ’s
evidence wa s that accused was present when the phone was found in his room .
Xola’s evidence was also that he was present during the second visit at the
accused’s ho me. He testified that the door was opened and a mattress lifted as a
result of which the deceased’s phone wa s discovered. The only debate wa s whether
the mattress that was lifted was the one of the accused’s bed or the one that was
behind the doo r in the accused’s room. What wa s beyond cogent dispute was that
C[...] ’s phone was found in the room of the accused a few hours after C[...] and her
younger sister’s murders . Fundamentally, this phone was found shortly after the
bodies of the two young girls were found lying naked each having been stabbed
several times and his poorly explained blood stained clothing was also found soaked
in water.
[41] While the accused ha d no duty to prove his innocence, he d id have a duty to
provide an explanation that wa s reasonably probably true about the presence of the
deceased’s phone in his room. In this regard, accused invented false conspiracy
theories. One was that he did not stay alone. He stayed with a student who stayed
at his home so as to be closer to a local school. Confusingly, he then said that that
student went home sometime in November after finishing writing his end of the year
examinations. That being the case , it was bewildering that he incoherently
mentioned that student, assuming that it was even true that such a student stayed at
his homestead. His second explanation was that the members of the community who
visited his house first searched his room before t aking him to the crime scene. In
this regard, he was lying. I accept that the people that fetched him did not conduct a
search on any of the suspects’ homes. The first suspect to be brought to the crime
scene was Xola . He was fetched and his ho me was not searched at that stage ,
which begs the question, why then would the home of one of the suspects be singled
out for a community search . The fact that the accused’s ho me would not have been
searched wa s aligned with Xola’s own experience whe n he was fetched by member
of the community and his home was not searched . It was also Mr K[...]’s evidence
that the people who were sent to look for the three young men were told to fetch
them and bring them to the crime scene for questioning , not to conduct a search .
The accused’s attempt at suggesting that the phone that was found at hi s home
could have been planted by members of the community when the y fetched him was
a fabric ation . This was patently false as no search was conducted when he was
fetched from his ho me by members of the community .
[42] There wa s more evidence pointing to the accu sed’s guilt. It wa s not just the
finding of what was indisputably C[...] ’s phone in the accused’s room shortly after her
and her sister’s brutal murders. The pair of trousers which the accused admitted that
he was wearing at the traditional ceremony in that homestead was fo und with blood
stains soaked in a bath tub so early that morning. He did not deny the blood stains in
his clothing . Instead, he said that his pair of trousers had blood stains that would
have come from his wound being septic and wet and the bandage being s oiled. The
problem though was that there wa s no evidence of a bandage that was found in that
bath tub. It follows that accused lied again. Even if there was a bandage in that bath
tub, it, like the wound itself, would have been part of the accused’s div ersionary
tactics to create a veneer of innocence . His other lie was his evidence that the
wound that was on his right knee had been inflicted a few days before the incident by
him falling on broken glass. The circumstances in which he incidentally fell o n broken
glass remain unexplained by him. He said that he fell on broken glass five days or
four days before the incident. He testified that indeed his clothing had blood stains
and on the evidence of Mr K[...], even on the zip of the lumber jacket that he was
wearing when he arrived at the crime scene had a stain or stains of blood which was
shown to Mr K[...] by a Mr Ma gafela. Accused never dealt with Mr K[...]’s evidence in
this regard. The wound which Mr K[...] saw on accused’s right knee was clearly a
self-inflicted wound which he probably inflicted on himself in an attempt to explain
the blood stains on his clothing after he had slaughtered those two young victims as
mercilessly and as psychopathically as he did.
[43] Again, that is not the last of the accused’s problems. There is also evidence
which he could not deny. That evidence was th at in the vaginal vault, which wa s
deep in the C[...] ’s vagina, his DNA was found through scientific analysis. He
admitted his DNA being in C[...] ’s vagina. Of course he could not deny sexual
intercourse with C[...] because he was aware that his DNA had been found in C[...] ’s
vagina . However, accused came wi th another lie, a patently false explana tion that
C[...] was his girl friend since May 20 15. However, his own evidence was that he last
saw her on the day they met at a shop on which day C[...] allegedly agreed to be his
girlfriend. He said that he never s aw her again and they never called each other .
This is very strange in light of the accused staying at Upper Nqadu locality and C[...]
at Lower Nqadu locality in the same Administration Area. He then admit ted the
evidence of Xola as being true, that he d id speak to C[...] that night at the homestead
in which there was traditional ceremony . Xola’s evidence was that after he saw the
accused speaking to C[...] , he never saw any of them again. At some stage Xola
wanted to go home in the early hours of the 2 December 2015. He and Lwando
looked for the accused. They could not find him. They phoned him but they could
not get through to his phone . After their disappearance, C[...] was found with her
younger sister dead having been stabbed wi th unimaginable savagery. She wa s
also found having been raped and a scientific analysis of the DNA had accused’s
DNA. It is disappointing that the accused was not charged with the rape or sexual
violation of S[...]. Dr Potelwa ’s evidence was that S[...] had a vaginal tear in the
anterior perineum. The Sexual Offences Act 32 of 2007 defines sexual violation as
including “ any act which causes direct or indirect contact between the genital organs
or anus of one person or, in the case of a female, her breasts, and any part of the
body of another person or an animal or any object including any object resembling or
representing the genital organs or anus of a person or an animal. ”
[44] The accused’s explanation in regard to C[...] ’s rape charge was that he had
consensual sexual intercourse with C[...] behind a hedge near the homestead that
had a ceremony was yet another falsehood . This wa s not only so improbable as to
be false, i t was evidently false beyond reasonable doubt. Thi s story was concocted
in a desperate attempt to explain the presence of his DNA in C[...] ’s vagina in
circumstances in which he could not explain in any other way other than alleging
false consensual intercourse .
[45] In Tom2 from which I quote liberally, Van Zyl DJP, writing for the full court of this
Division stated , the applicable law as it relates to circumstantial evidence as follows:
2 Tom v S [2022] ZAECMKHC 98; 2023 (2) SACR 283 (ECMKK) paras 9 -11 (29 November 2022)
“[9] The determination of the probative value of DNA evidence is done in the
context of the facts to the case, the nature of DNA evidence, and the rules
of evidence which apply thereto. It is in the latter aspect that the second
characteristic of the DNA evidence lies. It is, in law, regarded as
circumstantial evidence. Circumstantial evid ence is evidence of a fact or
facts from which the court is asked to infer from another fact in issue. The
fact that DNA evidence sets out to establish is that the DNA profile of the
crime scene sample matches that of the accused person, from which the
court is then asked to infer that the accused was the perpetrator of the
crime. The two facts may conveniently be referred to as “ primary ” and
“secondary ” facts respecti vely, the primary fact being used for drawing
an inference(s) as to the existence of the secondary fact. DNA evidence
is consequently by its very nature indirect, or as is commonly referred to,
circumstantial evidence. With regard to the degree of certai nty with which
the primary facts must be proved in a criminal case, it always depends on
the probative value of the individual facts themselves. Where, as in the
instant matter, the fact on which the prosecution relies, constitutes an
indispensable link i n the chain of reasoning towards the fact in issue,
namely the identity of the perpetrator, that fact must be proved beyond a
reasonable doubt. This is in contrast with the situation where the State
places reliance on a combination of a number of facts wh ich are not
individually capable of supporting the inference, but may do so when
taken together, in which event it may not be necessary to prove the
existence of each beyond a reasonable doubt. It was explained as
follows in R v Mtembu :
“Circumstantial ev idence, of course, rests ultimately on direct
evidence and there must be a foundation of proved or probable
fact from which to work. But the border -line between proof and
probability is largely a matter of degree, as is the line between
proof by a balance of probabilities and proof beyond reasonable
doubt. Just as a number of lines of inference , none of them in
itself decisive, may in their total effect lead to a moral certainty
(Rex v de Villiers (1944, A.D. 493 at p. 508)) so, it may fairly be
reasoned, a number of probabilities as to the existence of the
facts from which inferences are to be drawn may suffice, provided
in the result there is no reasonable doubt as to be accused’s guilt.
That was the view, I think, which underlay the use of the words
“either proved or shown to be probable” in Rex v Mthlong o (1949
(2), S.A.L.R. 552 at p. 558 (A.D)) and see Wigmore on Evidence
secs. 216 and 2497.”
[10] The principles in relation to inferential reasoning are well established.
The standard of proof beyond a reasonable doubt in criminal proceedings
requires the application of, what the court in the oft -quoted case of R v
Blom (Blom) referred to, as the two “cardinal rules of logic”:
“In reasoning by inference there are two cardinal orders of logic
which cannot be ignored:
(1) The inference sought to be drawn must be consistent
with all the proved facts. If it is not, the inference
cannot be drawn.
(2) The proved facts sho uld be such that they exclude every
reasonable inference from them save the one sought to
be drawn. If they do not exclude other reasonable
inferences, then there must be a doubt whether the
inference sought to be drawn is correct.”
[11] Some of the key p rinciples underlying the test in Blom , as amplified in R v
de Villiers are the following: the facts from which the prosecution seeks to
draw the inference of guilt must not also be reasonably consistent with a
hypothesis other than the one relied upon, in other words, the inference of
guilt must be the only reasonable inference; there must be some
evidential foundation to support the inference to be drawn, and
speculation, conjecture or a bare possibility will not be sufficient; as the
inferential conclusio n sought to be drawn is determined against the
strength of the factual premise provided by the context of the facts of the
case, all of the circumstances established by the evidence are to be
considered and weighed in deciding whether the inference is cons istent
with the proved facts. The evidence must be considered as a whole, and
not by a piece -meal approach; and, following from the fact that the burden
of proof rests on th e State throughout criminal proceedings to prove the
guilt of the accused beyond a reasonable doubt, the accused person is
not required to establish that some other inference should be drawn, or to
prove particular facts which are to support such other inference. ”
[46] The totality of all the evid ence in this matter reminds one of the foundational
principles of inferential reasoning as profoundly stated in Mlambo3 from which I
quote copiously:
“It is obviously impossible to formulate the princ iple in language which will
produce any measure of certainty and endeavours are made to afford more
definite and reliable guidance to those engaged in the solution of tantalising
problems by unravelling inferences from circumstantial evidence. The
languag e employed in the more popular way of enunciating the principle does
not appear to offer much relief. It is no more precise than, and it is exp osed to
the same dangers of mis interpretation and misapplication as, the form which
at one time found almost uni versal favour and which has served the purpose
so successfully for generations. In my opinion, there is no obligation upon the
Crown to close every avenue of escape which may be said to be open to an
accused. It is sufficient for the Crown to produce evi dence by means of which
such a high degree of probability is raised that the ordinary reasonable man,
after nature consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed the crime charged. He
must in oth er wo rds, be morally certain of the g uilt of the accused. An
accused’ s claim to the benefit of a doubt when it may be said to exist must not
be derived from speculation but must rest upon a reasonable and solid
foundation created either by positive evidence or gathered from reasonable
inferences which are not in conflict wi th, or outweighed by, the proved facts of
the case. Moreover, if an accused deliberately takes the risk of giving false
evidence in the hope of being convicted of a less serious crime or even,
perchance, escaping conviction altogether and his evidence is declared to be
false and irreconcilable with the proved facts a court will, in suitable cases, be
fully justified in rejecting an argument that, notwithstanding that the accused
3 R v Mlambo 1957 (4) SA 727 A at page 737 H -738 A -D.
did not avail himself of the opportunity to mitigate the gravity of the offenc e, he
should nevertheless receive the same benefits as if he had done so. The
logical result of the contrary view would be to place a premium upon false
testimony and to afford protection to the cunning and ingenious criminal who
could with impunity commi t murders and, by destroying the body, defy
detection of the cause of death and thus escape condign punishment.”
[47] In all the circumstances, I find that the State has proved the guilt of the accused
beyond reasonable doubt on all the charges . The Stat e has proved that accused
kidnapped both S[...] who was 12 years old at the time and C[...] who was 16 years
old at the time. While there was no evidence of S[...] being seen by the only witness
called by the State who was present at that ceremony, it is not without significance
that the two sisters were found murdered in the same place at the same time. The
accused must have lured them or forced them to a secluded spot in a nearby forest
where he also raped C[...] and killed both of them in the most sava gely cruel manner
by stabbing S[...] no less than 23 times and by stabbing C[...] , no less tha n 33 times.
These crimes were not committed by chance but were, at some point, planned so
carefully that nobody saw the accused leaving w ith his victims or possibly even
following them on their way home that morning whom he abused and thereafter
brutally murdered.
[48] The accused is therefore found guilty as charged as follows:
1. Accused is found guilty in respect of count 1, the kidnapping of S[...] K[...].
2. Accused is found guilty in respect of count 2, the robbery with aggravating
circumstances of the vodaphone cell ular phone of C[...] K[...].
3. Accused is found guilty in respect of count 3, the murder of S[...] K[...].
4. Accused is found guilty in respect of count 4, the murder of C[...] K[...].
5. Accuse d is found guilty in respect of count 5, the rape of C[...] K[...].
_________________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
Appearance
Counsel for the State : M.D. Nyendwana
Instructed by : National Prosecuting Authority
Mthatha
Counsel for the accused : A. Madywede
Instructed by : Legal Aid South Africa
Mthatha
Date Heard : 5 June 2025
Date Delivered : 12 June 2025