IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)

KS11/20244
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO

In the matter between:

THE STATE

And

LESOLE ABRAM CIYA Accused

Coram: Lever J

JUDGMENT

Lever J

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

1. The accused in this matter faced two charges: Charge 1, murder read with
section 51(1) of the Criminal Law Amendment Act 105 of 1997 (CLAA) as
amended; and Charge 2, attempt to defeat or obstruct the ends of justice.

2. In respect of the murder charge , reference to section 51(1) of the said CLAA
means that if the offence is covered by Part 1 of Schedule 2 of the said Act,
then there is a mandatory minimum sentence of life imprisonment. The said
part 1 of schedule 2 of that Act, amongst others, deals with murder where the
victim was in a domestic relationship with the alleged murderer. The relevant
portion of Part 1 of Schedule 2 reads as follows:

“Murder, when-
. . .
(g) the death of the victim resulted from physical abuse or sexual abuse,
as contemplated in paragraphs (a) and (b) of the definition of ‘domestic
violence’ in section 1 of the Domestic Violence Act, 1998 (Act 116 of
1998), by the accused who is or was in a domestic relationship, as
defined in section 1 of that Act, with the victim.”

3. It was common cause between the State and the defence that the accused was
in a domestic relationship with P[...] M[...], the deceased in relation to the
murder charge. The upshot of this is that a minimum prescribed life sentence
would apply should the accused b e convicted on the first charge , and if there
are no substantial and compelling grounds to depart from the said prescribed
minimum sentence.

4. In defining the issues to be decided by this court , it is necessary to give a brief
summation of the version put forward by the accused and that put forward by
the prosecution.

5. In short, the version of the accused is that he was on duty as a heavy -duty
truck driver on 1 August 2023. His girlfriend, the deceased , was travelling with
him a t the time in question. He had delivered a load to the GWK silo at
Modderrivier. After the off-loading process and paperwork had been completed,

he moved the truck concerned from the off -loading area to an area where the
truck drivers rested, washed and pr epared meals. He remained in the said rest
area for some time.

6. The truck was fitted with a ‘Tracker device’ and the Tracker report was
furnished, which shows the accused departed Modderrivier to make his way to
the point where he was to collect his next load for delivery. The accused then
maintains that he stopped the truck to urinate in the proximity of Kimberley just
after the traffic circle where he turned onto the Douglas Road. The Tracker
report shows that the accused stopped at this geographic locat ion at 22:18:44
on 1 August 2023.

7. The accused alighted from the vehicle to urinate. Whilst urinating on the side of
the road , he noticed two people approaching him. He stopped urinating and
hurried around the front of the truck to the driver’s side, where he observed
another two persons approaching him from that side. He was hit on the head
and claims to have passed out. When he came to, he heard the persons who
attacked him leaving. He went to check on his girlfriend, the deceased in this
matter. He found her unresponsive on a bed in the back of the cab of the truck.

8. The accused phoned his boss to call the police and an ambula nce. The
evidence shows that he and his boss , Mr Sarel van der Walt , spoke on the
phone at 22:33. The accused denies killing his girlfriend and blames it on the
aforementioned attackers.

9. The State contends that by the time the paramedics examined the deceased,
the process of rigor mortis had already set in. On the State’s version , the
murder of the deceased could no t have taken place between the times of
22:18:44 and 22:33, as contended by the accused, since rigor mortis had set in
on the body of the deceased, and the process takes 8 hours to develop.

10. Mr Sekeleni was the paramedic whom the State relied upon for the primary
observations of the body of the deceased at approximately 23:30 on 1 August

observations of the body of the deceased at approximately 23:30 on 1 August
2023. Then the State l ed the evidence of the pathologist Dr Lemaine Fouch è,

who sat in on the evidence of Mr Sekeleni. Based on the primary observations
of Mr Sekeleni, Dr Fouch è expressed the opinion that the deceased, the
girlfriend of the accused , had been dead for some 8 ho urs when Mr Sekeleni
examined the body.

11. Insofar as these primary observations of the deceased are concerned, Mr
Sekeleni, the paramedic, is a single witness. His evidence needs to be
assessed on that basis to determine if the primary observations he made are
reliable as the basis upon which Dr Fouchè formed her opinion.

12. It is clear from the State ’s case, as summarised above, that there is no direct
evidence implicating the accused , and the case presented by the State is
based on circumstantial evidence.

13. The above is a brief summation of the respectiv e cases put by both the
accused and the prosecution in the matter. The relevant detail and the veracity
or otherwise of the relevant evidence will be examined more closely later in this
judgment.

14. For the sake of completeness, the defence brought an applic ation on behalf of
the accused under the provisions of section 174 of the Criminal Procedure Act 1
(CPA) for the discharge of the accused at the close of the State case. I
dismissed this application and indicated that I would provide my reasons for
doing so in this judgment. My reason for dismissing the section 174 application
was that I had concluded that there was at that stage evidence adduced by the
State on the strength of which a reasonable court might convict the accused.

15. The evidence that the State had adduced at the stage of the section 174
application related to the setting in o f rigor mortis and the timelines involved.
However, even at that stage , I had concerns about the evidence of the
paramedic, Mr Sekeleni , as well as the manner in which the State introduced

1 51 of 1977.

the evidence in relation to the alleged rigor mortis in which the deceased’s body
was found when Mr Sekeleni examined the body of the victim.

16. In the light of my concerns, I found that it would be in the interests of justice that
both Mr Sekeleni and the pathologist Dr Fouch è be recalled. I further directed
that Dr Fouch è sit in on the proceedings when Mr Sekeleni gave his evidence
after being recalled.

17. In these circumstances, the law upon which the evidence must be assessed will
be briefly considered alongside the law required to establish the case against
the accused.

18. The law in relation to assessing the case in such circumstances has been
succinctly set out by Zulman JA in the case of S v V2, as follows:

“It is trite that there is no obligation upon an accused person, where the State
bears the onus, ‘to convince the court’. If his version is reasonably possibly
true he is entitled to his acquittal even though his explanation is improbable. A
court is not entitled to convict unless it is satisfied not only that the explanation
is improbable but that beyond any reasonable doubt it is false. It is
permissible to look at the probabilities of the case to determine whether the
accused’s version is reasonably poss ibly true but whether one subjectively
believes him is not the test. As pointed out in many judgments of this Court
and other courts the test is whether there is a reasonable possibility that the
accused’s evidence may be true.”3

19. The next question is how one approaches the evidence that has been placed
before the court to apply the above test. Guidance on this aspect can be found
in the judgment of Nugent J (as he then was) in the case of S v Van Der
Meyden4, the relevant passage reads as follows:


2 2000 (1) SACR 453 (SCA).
3 at 455A-C.
4 1999 (1) SACR 447 (W).

“The onus of proof in a criminal case is discharged by the State if the evidence
establishes the guilt of the accused beyond reasonable doubt. The corollary is
that he is entitled to be acquitted if it is reasonably possible that he might be
innocent. These are not separate and independent tests, but the expression of
the same test when viewed from opposite perspectives. In order to convict, the
evidence must establish the guilt of the accused beyond reasonable doubt,
which will be so only if there is at the sam e time no reasonable possibility that
an innocent explanation which has been put forward might be true. The two are
inseparable, each being the logical corollary of the other.
In whichever form the test is expressed, it must be satisfied upon a
consideration of all the evidence . A court does not look at the evidence
implicating the accused in isolation in order to determine whether there is proof
beyond reasonable doubt, and so too does it not look at the exculpatory
evidence in isolation in order to determine whether it is reasonably possible that
it might be true.”5 (references omitted)

20. At this point, it is also apposite to quote the dicta of Cameron JA in the matter of
S v Mavinini.6 The relevant passage reads as follows:

“It is sometimes said that proof beyond reasonable doubt requires the decision -
maker to have ‘moral certainty’ of the guilt of the accused. Though the notion of
‘moral certainty’ has been criticised as importing pote ntial confusion in jury
trials, it may be helpful in providing a contra st with mathematical or logical or
‘complete’ certainty. It comes down to this: even if there is some measure of
doubt, the decision -maker must be prepared not only to take moral
responsibility on the evidence and inferences for convicting the accused, but to
vouch that the integrity of the system that has produced the conviction – in our
case, the rules of evidence interpreted within the precepts of the Bill of Rights –

case, the rules of evidence interpreted within the precepts of the Bill of Rights –
remains intact. Differently put, subjective moral satisfaction of guilt is not
enough: it must be subjective satisfaction attained through proper application of
the rules of the system.”7

5 at 448F-I.
6 2009 (1) SACR 523 (SCA).
7 para 26.

21. As already set out above, there is no direct evidence linking the accused to the
murder of his girlfriend. The State’s case is based on circumstantial evidence.

22. The very nature of circumstantial evidence means that inferences need to be
drawn from the facts placed before the court. In the case of Rex v Blom8,
Watermeyer JA set out what has become the locus classicus on the question of
assessing what inferences can be drawn from circumstantial evidence and
when such inferences can be used in a criminal trial to link the accused to the
act in question. The relevant passage reads as follows:

“In reasoning by inference there are two cardinal rules 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 should 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.”9

23. The critical evidence which the State asks this court to accept and dr aw
inferences from is that of a single witness, the paramedic, Mr Sekeleni.

24. The provisions of section 208 of the CPA are to the effect that a conviction may
follow from the evidence of a single witness. However, the cautionary rule that
has built up around the acceptance of the evidence of a single witness remains
well-entrenched. It appears that this cautionary rule originated from the case of
R v Mokoena10 where it was held “[the statutory provision then applicable]
should only be relied o n where the evidence of a single witness is clear and
satisfactory in every material respect. . . . ”11


8 1939 AD 188.
9 at 202-203.
10 1932 OPD 79.
11 at 80.

25. There was controversy around the application of this cautionary rule , and it was
argued that it should not be applied thoughtlessly as if it were a ch ecklist. The
cautionary rule has survived the historical debate on its application , and the
manner in which it is to be applied was set out by Dlodlo JA writing for the
unanimous bench of the SCA in the unreported case of Rugnanan v The
State12, where the approach to be followed was set out as follows:

“It is trite that an accused can be convicted of any offence on the evidence of a
single competent wi tness. The well -established practice though, is that the
evidence of a single witness should be approached with caution and that his or
her merits as a witness are properly weighed against factors which militate
against his or her credibility. The cautiona ry rule does not require that the
evidence of a single witness must be free of all conceivable criticism. The
requirement is merely that it should be substantially satisfactory in relation to
material aspects or be corroborated. . . .”13 (references omitted)

26. The Namibian Supreme Court dealt with the matter in the case of Minister of
Basic Education, Sport and Culture v Vivier N.O and Another.14 where Maritz,
J.A. set out the position as follows:

“These judicial concerns and, I should add , also those which arise when the
Prosecution is seeking a conviction on the evidence of a single, uncorroborated
witness, require of Courts to make a guarded assessment of the veracity and
reliability of the testimonies given by such witnesses in criminal proceedings. As
a rule, this cautionary approach has consistently been applied in this
jurisdiction. Not, it should be noted, as a formalistic procedural requirement to
which mere lip service must be paid, but as an intrinsic part of a broader logical
and reasoned inquiry into the substance of the evidence against the accused:
after due appreciation and assessment of the peculiar and inherent dangers of

after due appreciation and assessment of the peculiar and inherent dangers of
convicting the accused on the evidence of the single/child witness who testified
at the trial, is the evidence of t hat witness, when considered in the context of

12 (Case No 259/18) [2020] ZASCA 166 ; S v Rugnanan 2020 JDR 2721 (SCA).
13 para 23.
14 2012 (2) NR 613 (SC); (SA 30 of 2007) [2012] NASC 9 (29 June 2012).

and together with all the other evidence adduced at the trial, sufficiently credible
and reliable to prove the guilt of the accused beyond reasonable doubt? This
cautionary approach, as Holmes JA pointed out in S v Artman and Another,
‘does not require the existence of implicatory corroboration: indeed, in that
event she would not be a single witness. What was required was that her
testimony should be clear and satisfactory in all material respects; … I would
add that, while there is always need for caution in such cases, the ultimate
requirement is proof beyond reasonable doubt; and courts must guard against
their reasoning tending to become stifled by formalism. In other words, the
exercise of caution must no t be allowed to displace the exercise of common
sense’.”15 (references omitted).

27. In an earlier judgment of the then Appellate Division in the case of S v
Webber16, which, although it was based on an earlier and slightly different
wording of the relevant provision relating to single witnesses , is still a useful
guide, Rumpff JA, set out the position as follows:

“…Dis natuurlik onmoontlik om ʼn formule te skep waarvolgens elk e enkele
getuie se geloofwaardigheid vasgestel kan word, maar dit is noodsaaklik om
met versigtigheid die getuienis van ʼn enkel getuie te benader en om die gooie
einskappe van so ʼn getuie te oorweeg tesame met al die faktore wat aan die
geloofwaardigheid van die getuie kan afdoen.”17

28. The second charge, being an attempt to defeat or obstruct the ends of justice,
in the present circumstances, depends upon a conviction of the accused on the
first count and a rejection of the version put forward by the accused .
Accordingly, I do not intend to spend any time on this aspect at this point and
will return to it if necessary.

29. As already mentioned, the case against the accused rests on circumstantial
evidence. Evidence was placed before the court in the form of form al

15 para 17.
16 1971 (3) SA 754 (A).
17 at 758G-H.

admissions under the provisions of section 220 of the CPA. Also , the
photographs, the J88 form pertaining to the medical examination of the
accused shortly after the incident, and the DNA results of swabbing of the
fingernails of the deceased and the ma terial found under the nails of the
deceased, were all admitted by consent. Also, statements made by various
witnesses and the accused were handed in as exhibits by agreement.

30. There was also a report that tracked the movements of the truck concerned on
the day in question. The report used what is described as “Tracker” technology
to log the movements of the said truck. This report was accepted by agreement
and was admitted to the record as Exhibit “G”. The said report provided the
position and movement of the relevant truck from 14:31:33 on 1 August 2023
until 22:22:13 on the same date . The said report comprised some 12 pages
divided into 9 columns. Each column provided different information relating to
the relevant truck for that particular time. The first column reflected the date and
time of the information update for the truck concerned. The second column
reflects the date and time the information was transmitted to the Tracker’s ‘back
office’ to be stored on the Tracker database. The third and fourth c olumns
respectively recorded the latitude and longitude of the said truck at that
particular date and time as recorded by the GPS satellite technology
incorporated into the ‘Tracker’ system. The fifth column provided a physical
location in terms of a street the said vehicle was on, the suburb the vehicle was
in or adjacent to, and the city the vehicle was in or in the vicinity of at that point
in time. Column six gives the actual speed of the vehicle at the specified time ,
and column seven gives the speed l imit on that stretch of road. Column eight
gave the odometer reading , and so comparing it to the previous entry , it is
possible to see the distance moved by the said truck between entries on the

possible to see the distance moved by the said truck between entries on the
report. The ninth column would give the status of the vehicle, i.e. whether it was
moving or stationary and/or whether the ignition was on or off at the relevant
time.

31. The tracker report would allow one to compare events as they unfolded to the
timeline provided by the Tracker report, Exhibit “G”.

32. The State also called the following witnesses: S ergeant L Arendse; Sergeant A
Riet; Ms M[...] M[...] (the mother of the de ceased); Warrant Officer Segoje (the
investigating officer); Dr L Fouch è (the pathologist); Mr L Sekeleni (the
paramedic); and Mr Sarel van der Walt , who employed the accused at the
material time and who owned the truck around which much of the case
revolved.

33. The accused gave evidence in his own defence.

34. The formal admissions made by the accused under the provisions of section
220 of the CPA were set out as follows: the deceased is the person mentioned
in the indictment , to wit, P[...] M[...]; that the deceased died on 1 August 2023;
That the deceased was declared dead on arrival, with no sign of life at the
scene on 1 August 2023 by Luvuyo Sekeleni, Emergency Medical Officer from
Kimberley Emergency Medical Services; that the body of the deceased
sustained no further injuries from the time the deceased died until the post -
mortem examination was conducted thereon; that Dr Lemaine Fouch è
conducted a post -mortem examination of the body of the deceased on the 3
August 202 3; that the cause of death was recorded as “strangulation”; that
Exhibit “B” is the post -mortem report, marked KDR 298/2023, by Dr Lemaine
Fouchè; the correctness of the facts and findings of the post -mortem report is
admitted to be both true and correct; that photographs 42 – 55 as per
Kimberley LCRC 02/08/2023 and part of Exhibit “C” were taken during the post-
mortem examination by Sergeant Tshepo Mogoiwa, from the NC Provincial CR
& CSM, Kimberley; that Sergeant Tshepo Mogoiwa, of the NC Provincial CR &
CSM, Kimberley, took photos of the crime scene on 2 August 2023 and on 18
April 2024; he further took photos of the deceased’s body on 3 August 2023
and compiled a photo album and drafted an affidavit in terms of section 212 of
the CPA; Exhibit “C” is the photo-album compiled by Sergeant Tshepo
Mogoiwa; the content of Exhibit “C” is admitted to be both true and correct.

Mogoiwa; the content of Exhibit “C” is admitted to be both true and correct.
These formal admissions were admitted to the record as Exhibit “A”.

35. The J88, being Exhibit “F” in these proceedings , showed that the accused ,
when he was examined by a Doctor at the provincial hospital on 2 August 2023,
had multiple scratch marks on his chest and upper left thigh.

36. The postmortem report , being Exhibit “B” in these proceedings , showed that
DNA samples we re taken under the nails of the left and right hands of the
deceased.

37. A DNA analysis was done on the relevant samples referred to above. The
results were set out in a report that was handed in by agreement as Exhibit “M”.
The DNA material found under the deceased’s nails was her own. In the light of
the multiple scratches to the accused’s chest and the upper left thigh, if there
had been a struggle between the accused and the deceased before she was
killed, Mr Babuseng who represented the accused , suggested that one would
have expected the DNA material under the nails of the deceased to include that
of the accused.

38. Ms Stellenberg , who appeared for the state , submitted that the DNA results
being that of the deceased were explained by the circumstances and cause of
her death, being strangled by a seat belt near where she was found in the back
of the cab of the truck. In Ms Stellenberg’s submission, the deceased scratched
herself while trying to remove the said seat belt from around her neck.

39. In my view, the fact that the accused’s DNA material was not found under the
deceased’s nails does not in and of itself exonerate the accused, but it also
does not implicate him in the said circumstances. However, the question of how
the accused sustained the said scratches is left unresolved and unanswered by
both the State and the defence.

40. In essence , the State case rests on the observations of Mr Sekeleni and the
conclusions that Dr Fouchè drew from such evidence. As already pointed out,
in these circumstances, Mr Sekeleni is a single witness and the cautionary rule
described above applies to his evidence. This court must be satisfied in relation

described above applies to his evidence. This court must be satisfied in relation
to both the reliability and credibility of Mr Sekeleni’s evidence.

41. Mr Sekeleni and his partner are paramedics , and they were the first persons to
arrive on the scene after the accused’s boss , Mr Sarel van der Walt, had
arranged for help after the phone call between the said Sarel van der Walt and
the accused at 22:33 on 1 August 2023 . Shortly after the paramedics arrived,
the first policemen to arrive were Sgt Arendse and Sgt Riet. The body of the
deceased was found shortly after Sgt Arendse climbed into the cab of the truck.
Mr Sekeleni was called into the cab of the truck to examine the deceased.

42. Mr Sekeleni examined the deceased. This was recorded in an ER24
‘Declaration of Death’ form . The findings of Mr Sekeleni were recorded on this
form. This form also recorded that the body of the deceased was handed to Sgt
Arendse at 23:30 on 1 August 2023. This form was admitted into the record by
agreement as Exhibit “H”.

43. Exhibit “H” had various parts to such form. Part D was the part that dealt with
‘Confirmation of Death’. Part D was divided into 2 columns. The first column
had the heading ‘Obviously Dead’. Under this heading , there were 4 rows . The
first row reads, ‘Decapitation or mortal disfigurement ’. In the appropriate space
provided for an answer , Mr Sekeleni wrote ‘yes’. The second row reads,
‘Generalised charring due to extensive burns’. In the appropriate space
provided for an answer in this row, Mr Sekeleni wrote ‘No’. The third row of this
first column reads. ‘ Putrefaction’. In the appropriate place provided for an
answer in this row , Mr Sekeleni wrote ‘Ye’ for ‘Yes’. The fourth row of this first
column reads, ‘Post Mortem lividity’. In the space provided for an answer in this
row, Mr Sekeleni wrote ‘Y’ for ‘Yes’.

44. The second column in section D of this declaration of death form, Exhibit “H”, is
headed ‘Clinical Investigation’. There are six rows under this column. The first
row under this second column reads, ‘No cardiac electrical activity on ECG on

row under this second column reads, ‘No cardiac electrical activity on ECG on
all three leads’. In the appropriate space for an answer provided on this row of
the form, Mr Sekeleni wrote ‘No’. The second row under this column reads, ‘No
palpable pulses ’. In the appropriate place for an answer on this row , Mr
Sekeleni wrote ‘No’. The third row under this column reads, ‘No audible heart

sounds’. In the appropriate place for a n answer on this row , Mr Sekeleni wrote
‘No’. The fourth row reads, ‘Bilateral fixed and dilated pupils ’. In the appropriate
place for an answer on this row, Mr Sekeleni wrote ‘Yes’. The fifth row under
this second column reads, ‘No spontaneous breathing f or the last five minutes’.
In the appropriate place for an answer on this row, Mr Sekeleni wrote ‘No’. The
sixth row under this column reads, ‘No dolls eye movement present’. In the
appropriate place for an answer on this row, Mr Sekeleni wrote ‘No’.

45. For present purposes , the important part of Mr Sekeleni’s evidence and the
controversy is contained in the first column. In relation to the first column and
the first row under that column, it is clear from the postmortem report, Exhibit
“B”, that when Dr Fouc hè examined the body of the deceased in this matter ,
there was no decapitation or mortal disfigurement of the deceased’s body. In
relation to the third row under the first column , it is clear from the relevant
postmortem report that when Dr Fouchè examined the body of the deceased ,
there was no question of putrefaction of the said body.

46. When asked about these two glaring mistakes , Mr Sekeleni said he had made
a mistake. That in consultation with the advocate representing the State in this
matter, he asked to correct the form , but the said advocate refused to allow
such correction. Ms Stellenberg was quite correct to refuse to allow such
correction.

47. When Mr Sekeleni was cross -examined on this issue by Mr Babuseng, he said
he made the obvious mista ke in relation to ‘decapitation’ “…because maybe I
was tired.” Further on in the said cross -examination, Mr Sekeleni , when
pressed by Mr Babuseng, said “Yes, I am saying with certainty that I was tired.”

48. The same process was repeated when Mr Babuseng cros s-examined Mr
Sekeleni on the second glaring mistake, being the putrefaction of the
deceased’s body as referred to on Exhibit “H”. Mr Sekeleni again contended he

deceased’s body as referred to on Exhibit “H”. Mr Sekeleni again contended he
made this mistake because he was tired.

49. Mr Babuseng asked Mr Sekeleni why this court should a ccept his evidence if
he was tired when he made and recorded his observations. Mr Sekeleni
maintained he made an obvious mistake and said the court can trust his
observations despite such mistake. Then Mr Sekeleni made a request that his
partner be called as a witness 18, the direct implication being that his partner
would support his observations. Mr Babuseng pressed Mr Sekeleni on the
alleged stiffness of the deceased’s body not being mentioned on Exhibit “H”.
Again, Mr Sekeleni requested that his partner be called to give evidence.19

50. Mr Sekeleni, in his testimony, took to referring to ‘ticking the form’ in relation to
the above mistakes because he was tired. Both Ms Stellenberg and Mr
Babuseng took to using this terminology uncritically. It is evident from section D
of Exhibit “H”, as has been quoted above , that Mr Sekeleni did more than
simply tick a box on a form. He in fact wrote ‘yes’, ‘ye’ or ‘y’ to symbolise yes.
This is different from simply ticking a box, it shows that one applied one’s mind
to what was being responded to on the relevant form in a more direct way than
simply ticking a box.

51. There are other concerns with Mr Sekeleni’s evidence . On Exhibit “H” under
section D, he wrote ‘y’, indicating yes for ‘Post Mortem lividity’. It is clear that Mr
Sekeleni did not know what post mortem lividity was. In the transcript of his
evidence, he refers to stiffness in this context. However, in his evidence , he
also acknowledges that there is a difference between ‘post mortem lividity’ and
‘rigor mortis’. It is not clear from this what Mr Sekeleni actually understood.

52. Mr Babuseng put to Mr Sekeleni that his evidence regarding the alleged
stiffness of the deceased’s body was an afterthought, because it is not
mentioned in the ‘declaration o f death form ’, being Exhibit “H” . To which Mr
Sekeleni responded : “No, that is why I am requesting the court to call my

Sekeleni responded : “No, that is why I am requesting the court to call my
partner, the one that was in my company to also come and testify.”20


18 Transcript: 24 February 2025, (Page 20 - line 23 to Page 21 line 2).
19 Transcript: 24 February 2025, (Page 26 - line 4 to 6).
20 Transcript: 24 February 2025; (Page 26-27).

53. Then Mr Babuseng referred Mr Sekeleni to Exhibit “O”, one of two statements
Mr Sekeleni made on 3 August 2023. The relevant passage of Exhibit “O”
reads:

“On 1 August 2023 in the performance of my official duties I attended the scene
of a murder at R357 Do uglas Road, Kimberley where I examined the body of
an unknown female and noticed the following injuries: On the right side of the
neck, there were scratch marks, the eyes were blue, there were no signs of life,
there was no breathing, eyes were dilated, she was cold.”

54. Mr Babuseng then put to Mr Sekeleni that after Exhibit “H”, this was the second
statement (Exhibit “O”) where Mr Sekeleni did not mention the alleged stiffness
of the deceased at the time he examined her. Mr Sekeleni did not answer this
question directly : he responded that he did mention the stiffness in court.
Eventually, after Mr Babuseng pushed the issue , Mr Sekeleni answered that he
forgot to include it or write it in.

55. There was a further statement made by Mr Sekeleni also on 3 August 2023.
This statement deals with Mr Sekeleni’s observations in respect of the accused
on the scene. This statement also does not mention the alleged stiffness of the
deceased.

56. In re-examination, Ms Stellenberg asked Mr Sekeleni if he had tried to bend the
arms and legs of the deceased. Mr Sekeleni then answered that he palpated
the deceased and made a gesture to indicate what he meant by use of that
term. It is usually my practice to describe gestures made by witnesses for the
benefit of the transcript. Unfortunately, I did not do so in this instance. I checked
this passage in the transcript against my bench -book. In my bench -book, I
described the gesture as a kneading motion. This would fit in with my
understanding of the word ‘ palpate’. Again, Mr Sekeleni did not answer this
question directly. Eventually, he stated that he did not try and bend the arm
because the body was stiff and hard.

57. It is important to be reminded of the fact that I recalled Mr Sekeleni to give
evidence for the reasons already set out above. The first time Mr Sekeleni gave
evidence, he described the body of the deceased as ‘a little bit stiff’. This was
also the position in his evidence -in-chief in the second round of evidence given
by him. Yet in re-examination, in closing off the second round of evidence , this
has progressed to him not trying to bend an arm because the body was stiff
and hard.

58. This was not the only difference between the evidence of Mr Sekeleni during
his first round of evidence and the second round of e vidence. In the first round
of evidence, he described the deceased’s body as being cold. Yet in his second
round of evidence , Mr Sekeleni described the body as being abnormally cold.
Painting a completely different picture to that presented in his first ro und of
evidence.

59. A further problem with Mr Sekeleni’s evidence is that he testified that when he
examined the deceased , her lips were a blueish colour. Mr Babuseng referred
Mr Sekeleni to Exhibit “C”, the photo album, and specifically referred to a
photograph of the deceased’s body where the face was clearly visible and
asked Mr Sekeleni if the deceased’s lips appeared blue in the photo. Initially, Mr
Sekeleni appeared to concede that the deceased’s lips did not appear blue in
the relevant photograph, but finally he asserted that to him, they appeared blue.
Mr Babuseng referred Dr Fouchè to the same photograph and asked the same
question. In her response, Dr Fouchè stated that she was not an expert in
interpreting photographs, but to her , the deceased’s lips did not appear to be
blue.

60. I have to mention that in my overall assessment of Mr Sekeleni as a witness, he
did not impress. He was willing to expand on his evidence as set out in the two
examples discussed above. He often did not answer questions directly, even
when they came from th e State advocate , Ms Stellenberg. In dealing with the

when they came from th e State advocate , Ms Stellenberg. In dealing with the
obvious errors on Exhibit “H”, he provided weak and uncreditworthy excuses.
These mistakes are both glaring and material ; they cannot simply be ignored.

There is no proper explanation for such mistakes. At best for Mr Sekeleni, he
was careless to an unacceptable degree given what is at stake.

61. Mr Sekeleni’s evidence is of such a nature that it cannot be considered reliable.
In these circumstances , it could only be accepted if such evidence could be
substantively corroborated.

62. It is clear from Mr Sekeleni’s requests to call his partner paramedic that Mr
Sekeleni himself considered that such a partner would corroborate his
evidence. The State did not , however, call the paramedic who was Mr
Sekeleni’s partner on the night in question.

63. It was only halfway through the State’s closing argument that I heard that Ms
Stellenberg had contacted and spoken to the said partner. Ms Stellenberg
informed the court that the said partner maintained he could not recall anything
of this specific incident, as he attended thousands of incidents in his career and
that he did not fill in the ‘declaration of death form’. I have to assume that this is
the reason why the State did not call such ‘partner’ as a witness or apply to re -
open the State’s case in order to do so.

64. In debating the issue of the evidence of such partner with Ms Stellenberg, she
conceded that she did not make this witness available to the defence. Ms
Stellenberg suggested that if this court feels it is in the interests of justice to call
this witness, the court should do so. I am only going to respond to this
suggestion to the extent that circumstances require. I have accepted Ms
Stellenberg’s assertion that this witness felt that he could not add anything in
the circumstances. For me to del ay this case further would constitute a
needless and unjustified delay in those circumstances. This reveals what was
probably a weakness in the way this case was investigated and prepared for
prosecution. The Investigating Officer ought to have taken a sta tement from Mr
Sekeleni’s partner paramedic at the same time as he secured the evidence of

Sekeleni’s partner paramedic at the same time as he secured the evidence of
Mr Sekeleni. There was no explanation as to why this was not done.

65. In the circumstances, the observations and testimony of Mr Sekeleni needed to
be corroborated bef ore this court could place any reliance on such evidence.
With the failure to secure the evidence of the paramedic partner of Mr Sekeleni,
the material aspects of his evidence that required corroboration could not be
corroborated. There was no other eviden ce placed before this court that
corroborated the observations of Mr Sekeleni in relation to the onset of rigor
mortis.

66. This leaves me to deal with the status of Dr Fouchè’s evidence. Obviously, Dr
Fouchè’s evidence on the cause of death and her findings as set out in the
postmortem report, being Exhibit “B”, stand. The said report was not challenged
in any way and was , in fact , conceded as correct in the formal admissions
made by the accused. At issue is the opinion ventured by Dr Fouchè relating to
the death of the deceased occurring eight hours before Mr Sekeleni examined
the body of the deceased. This opinion was based on the primary observations
of Mr Sekeleni. Such observations have been found to be unreliable by this
court.

67. Firstly, Dr Fouchè does not decide upon the reliability of Mr Sekeleni’s
evidence. To be clear, she did not try to do so, as will emerge presently. It is the
function of this court to decide on the reliability and credibility of Mr Sekeleni’s
evidence. Dr Fouchè’s opinion is based on the assumption that Mr Sekeleni’s
observations in relation to the state of the deceased’s body are accurate,
correct and reliable. Dr Fouchè herself conceded that her opinion would change
if Mr Sekeleni’s observations were incorrect. Further, Dr Fouchè also testified
that academic writing held that rigor mortis set in at 8 hours and lasted for 36
hours, but Dr Fouchè testifie d that this was not an exact science and that there
were a number of external factors that could affect these timelines. Examples of
these external factors given by Dr Fouchè included the relatively small or light

these external factors given by Dr Fouchè included the relatively small or light
body mass of the deceased, the deceased be ing lightly dressed and the
ambient temperature on 1 August 2023. We do not have evidence of the
ambient temperature at the scene on the Douglas Road after 22:18 on the night
in question.

68. However, the main issue is whether the evidence of Mr Sekeleni can be relied
upon for the purpose of Dr Fouchè’s opinion on the time of death . The short
answer to this question is “no”, for the reasons already set out above. Dr
Fouchè’s opinion as expressed in court relating to the time of death can only be
accepted if the evidence upon which such opinion is based can safely be
accepted as reliable. In the case of Mr Se keleni, for the re asons already set
out, I cannot accept his evidence as reliable.

69. The accused’s version has already been summarised above , and without
repeating that entire summary, I need to repeat that the accused testified that
he was struck on the forehead with an object, he claimed to pass out and came
to when he heard the voices of his assailants departing. He testified to waking
up confused and struggling to stand. It dawned on him that he needed to check
on his girlfriend. He testified that he got into the cab of t he truck and found his
girlfriend in an unresponsive state that he did not understand. He tried to revive
her but did not succeed in doing so.

70. The State argued that there were material contradictions between the evidence
of the accused in court and the s tatement of the Doctor who examined him and
recorded the findings on the J88, being Exhibit “F”. Also, the State pointed to
the differences between the evidence of Mr Sarel van der Walt and that of the
accused. Mr van der Walt testified that in the phone call that took place at 22:33
on the night in question, the accused claimed that he had been hijacked and
stabbed. That he did not mention his girlfriend being his travelling companion.

71. Dealing with what is recorded on the J88 being Exhibit “F”. The relevant
passage is contained in paragraph 5 of Exhibit “F”, which reads as follows:

“According to the patient, while he stopped the truck to urinate, he was attacked
by two unknown males, hit with something on right side of face and he lost

by two unknown males, hit with something on right side of face and he lost
conscious (sic), when he wakes up he heard his girlfriend screaming and
heavily breathing, he attempt (sic) to resuscitate her. Tried to call for help;
called his boss. Do (sic) not recall how he got scratches.”

72. This version is at odds with the accused’s testimony in a number of respects.
Firstly, the number of attackers and the ability to recognise their gender.
Secondly, that when he came to, he heard his girlfriend screaming and
breathing heavily. The ac cused, when confronted by these different versions ,
explained that there was a language barrier between him and the Doctor who
filled in the J88. It is evident from the Doctor’s stamp as it appears on the J88,
being Exhibit “F”, that the relevant Doctor qualified in the United Kingdom. In
these circumstanc es, the accused’s explanation is at least plausible. In the
circumstances, the accused must be given the benefit of the doubt.

73. In at least one respect , the J88 does corroborate or at least support the
accused’s version. It records a bump on the accused’s right forehead. This is
consistent with the accused’s version that he was hit on his head with an
object, and he lost consciousness.

74. Turning now to the evidence of Mr van der Walt that when he spoke to the
accused telephonically at 22:33 on the night in q uestion, the accused had
informed him that he (the accused) had been stabbed. The accused also
testified that he asked his boss , Mr van der Walt , to call an ambulance for his
girlfriend. Mr van der Walt denies this assertion. The accused explained that he
was in an emotional state, that he had been crying. He was in a state that he
did not understand himself. That in these circumstances , he and Mr van der
Walt had difficulty in communicating. Mr van der Walt’s evidence confirmed that
the accused was crying and was difficult to understand in that telephone
conversation. In these circumstances, a misunderstanding is plausible.

75. Ms Stellenberg submitted that taking into account that the accused had given
conflicting versions, the period between the accused stop ping to urinate at
22:18 and the telephone call with the accused’s boss , Mr Sarel van der Walt at

22:18 and the telephone call with the accused’s boss , Mr Sarel van der Walt at
22:33, was too short a time for the assault on the accused and the killing of the
deceased. Ms Stellenberg submitted further that there was still loose change in
the truck after the attack, furthermore, the fact that the truck was not stolen, and
the accused’s c ell phone, which had been in the possession of the deceased ,
was also not taken, shows the accused’s version to be false.

76. In responding to the elements that make up Ms Stellenberg’s submission , while
he was under cross-examination, the accused maintained that he was attacked,
and he was unconscious for a period. T hat t here was more than a hundred
Rand in the same place where some change was found that appeared to be
missing. That there were also some blankets and other items that were not
returned to him from the said truck.

77. Having regard to the fact that the place where the accused stopped at 22:18 on
the night in question was not a planned stop. There was also no evidence that
such a location was a hijacking hotspot. In these circumstances, the
probabilities are that the attack was an opportunistic one. It was not planned.
We do not know what the attackers hoped to find or get away with. In my view,
15 minutes is certainly enough time to attack the accused and kill the
deceased. It is possible that the at tackers took the bulk of the money and left
some change behind. We do not know when the deceased dropped the
accused’s cell phone between the bed and the front passenger seat or even if
the attackers were aware of this.

78. The first responders agreed that when they encountered the accused, they
perceived him to be in a state of shock. This can be interpreted in a number of
ways, but on the probabilities, it may well support the accused’s version.

79. Further, the bump on the ac cused’s forehead, as recorded in the J88, Exhibit
“F”, is consistent with the accused’s version. The fact that the accused could
not explain his injuries is, on the probabilities, consistent with his version that
he had been rendered unconscious by a blow to the head.

80. It must be remembered that there is no onus on the accused. In the present
circumstances, there are certainly questions and concerns that I have regarding
his evidence, but it cannot be said that beyond a reasonable doubt , his version
is false. Conversely, his version could reasonably possibly be true.

81. In these circumstances, I must find the accused not guilty on both count 1 and
count 2.


_________________
L. G. Lever
Judge
Northern Cape Division, Kimberley


Representation:

For the State: ADV A STELLENBERG And ADV T ENGELBRECHT
Instructed by: DIRECTOR OF PUBLIC PROSECUTIONS

For the Accused: ADV B BABUSENG
Instructed by: LEGAL AID SA (JUDICARE)

Date of Judgment: 21 JULY 2025