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


IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN

Case no: CCD30/2025
In the matter between:

THE STATE

and

NKANYISO COLLEN NDLOVU THE ACCUSED




JUDGMENT



Hlatshwayo AJ

Introduction
[1] Following the horrif ic death of the accused ’s ex-partner, Ms Z[...] M[...] and
her mother Mrs. D[...] M[...] who were shot in execution style on 6 August 2023 , the
accused is facing two counts of murder relating to their death. In addition, he faces
one count of attempted murder. This count relates to an attempt on the life of his son
who I shall hereafter refer to as JJ in order to protect his identity considering he is
still a minor. The accused also faces two counts of unlawful possession of firearms
and one count of unlawful possession of ammunitions. Section 51(1) part 1 of

2
schedule 2 of the Criminal Law Amendment Act 105 of 1997 (‘CLAA’) is applicable to
counts 1,2 and 3. Counts 4 and 5 is read with 51( 2) part II schedule 2 of the above
Act.

[2] The accused pleaded not guilty to all charges and briefly disclosed in terms of
s 115 of the Criminal Procedure Act 51 of 1977 (‘CPA’) that on the day in question
he was highly intoxicated and cannot recall all the events. He , therefore, lacked an
intention to commit the offences. The defence made certain admissions in terms of
Section 220 of the CPA which were then placed on record. As a result, exhibit ‘B’ to
‘I’ was entered on record by agreement. The State called the two children of the
accused. Other than JJ referred to above , the State also called the accused’s
daughter. I shall refer to her as DD. The following witnesses were also called by the
State. Doctor Nzey Mundele who treated JJ at RK Khan Hospital, Doctor Bernice
Nonjabulo Ndlovu who conducted a post mortem examination on the two deceased
bodies, Sergeant Nkosi Dladla who was the first police officer on the scene,
Constable Brendon Doraivelu who checked on the status of JJ at the hospital,
Warrant Officer Swelihle Mlambo from the local criminal record centre who uplifted
the exhibits and took photographs of the scene, Warrant Officer Aramugan Pillay
who conducted a forensic ballistic examination of the exhibits recovered from the
scene, Mr K[…] who is the father of the deceased, Warrant Officer Moses Mbongeni
Nxumalo who arrested the accused in Johannesburg, Sergeants’ Zwelihle Henrrick
Mzimela and Njengenkosi Muntuwenkosi Mthethwa who apprehended the accused
in 2021 on the charge of unlawful possession of a firearm, Sergeants’ Elvis
Dumakude and Syabonga Manzini who stored and transported the said firearm in
2021 and S ergeant Ndumiso Khambule who is the Investigating Officer in this
matter. For the defence, it was only the accused who testified.

Preliminary applications

matter. For the defence, it was only the accused who testified.

Preliminary applications
[3] The State commenced with a number of preliminary applications before the
testimonies of the two child witnesses. It applied in terms of s 170A(1) of the CPA for
the appointment of an intermediary . The basis of the application is that the
appointment of the intermediary will assist and protect the child witnesses likely to be
exposed to undue stress when testifying about their traumatic events. It also sought
orders in terms of s 158(2) and ( 3) for the witnesses to testify via closed circuit

3
television to mitigate the trauma of testifying in court and the exposure of testifying
against their father. Lastly the State applied in terms of s 153 for the child witnesses
to give their evidence on camera on the basis that the nature of the evidence is
sensitive, stressful and p ublic proceedings are likely to retraumatise the said
children. The defence did not oppose any of the above applications.

[4] Indeed section 170A implores a court to consider the likely exposure of the
child to undue psychological, mental or emotional stress and trauma when he or she
testifies and to appoint a competent intermediary. In casu those sufferings are
exceptionally pronounced. The minor children are called upon to testify not only
about the murder of their mother, grandmother and the attempted murder of one of
the said children but the person accused of those crimes is their fathe r. Should they
testify unassisted this would result in undue suffering and trauma. The court must
protect the wellbeing of the minor children and give effect to the Constitutional
imperative that the child’s best interests are paramount in matters involving children.

[5] For those reasons I ordered that an intermediary must be appointed to assist
with the evidence of the two minor children. As part of a protection mechanism, I also
ordered that the said children testif y via closed circuit television or other similar
means as sanctioned by s 158(2) and (3) of the CPA. Lastly , I ordered that the
proceedings be held in camera as provided in s 153(2) of the CPA and that their
names must not be published.

[6] Before the testimony of the two minor children, an enquiry in terms of s 164 of
CPA was conducted to determine if the said minor children are competent to testify
and whether they understand the nature and import of taking an oath. Certain
questions were put to both JJ and DD. I concluded that both understand the
difference between the truth and falsehood and both understand the nature and

difference between the truth and falsehood and both understand the nature and
import of taking an oath.

[7] Both the prosecution and defence were dissatisfied with the above finding in
particular as it relates to the child witness DD. The State argued that the proper
approach is that after the determination that she knows the difference between truth

4
and falsehood, the child should be admonished due to her youth. Reliance was
placed on Director of Public Prosecutions, KwaZulu Natal v Mekka1 which held that:
‘the fact that the magistrate after having established the age of the complainant proceeded
to inquire whether she underststood the difference between truth and lies and then warned
her to tell the truth is in my view a clear indication that she considered that the complainant,
due to her youthfulness, did not understand the nature and import of the oath.’

[8] The defence on the other hand was of the view that the court only dealt with
the competency of the child in its questioning and did not satisfy the requirements of
the oath.

[9] After considering both parties submissions I was not swayed that my finding
that the child witness understood the nature and import of taking an oath was wrong.
In my ex temporae ruling on the issue I outlined reasons for the above decision. I do
not intend to rehash those reasons. It will suffice to emphasise that from the
peremptory provisions of s s 162 and 164 of the CPA our courts generally conduct a
two-stage enquiry regarding whether a witness understands the difference between
truth and falsehood and the nature and import of taking an oath. The matter of S v
SM2 is instructive on this issue. Dambuza JA held:
‘An inquiry whether a potential witness can distinguish between truth and falsity goes to
whether a witness is competent in the first place. On the other hand, a question directed to a
witness on whether he or she understands the nature and import of the oath and affirmation
goes to whether the witness should be caused to take the oath or affirmation, or should be
admonished to speak the truth.’

[10] Having said that it must be acknowledged that an enquiry is not always
necessary in order to make a finding required by s 1643 and the youthfulness of the
witness may justify such a finding. However, a finding that the witness does not

witness may justify such a finding. However, a finding that the witness does not
understand the nature and import of the oath must still be made based on the
information available to the presiding officer. This is also clear from DPP v Mekka
where the supreme court of appeal held that the magistrate found that the child does

1 Director of Public Prosecutions, KwaZulu-Natal v Mekka 2003 (4) SA 275 (SCA) para 11.
2 S v SM 2018 (2) SACR 573 (SCA) para 19.
3 S v SB 2003 (1) SA 552 (SCA).

5
not understand the oath before admonishing the child. In this case based on the
information before me, I made no such finding. It is clear from the reading of the
provision that for the admonishment to be triggered the re must be a finding that the
witness does not understand the nature and import of the oath .4 From the
information provided , I found that the child witness recognises the dangers and
wickedness of lying and understands the nature and import of the oath.

Summary of evidence
[11] The case for the prosecution is that the accused was previously in a
relationship with Z[...] M[...] and that they shared two minor children . I shall refer to
her as deceased 1. The State alleges that during their relationship, the accused had
abused deceased 1 both physically and verbally. This resulted in their separation
and deceased 1 left the accused’s residence in Mbulwane, Greytown and returned to
Durban in December 2022. On Friday 4 August 2023, the accused had brought the
two minor children to visit deceased 1 and her family at her residence at 1 […]
informal settlement in Chatsworth, Durban . On Sunday, 6 August 2023, the accused
returned to deceased 1’s residence to pick up the said children.

[12] An argument had ensued between the accused and deceased 1. The
altercation c entred around missing monies that were meant for the minor children
which had been given to deceased 1. Prior to the argument, deceased 1 had sent JJ
to call the grandmother, Mrs Q[...] M[...] who lived around 80 meters away from her. I
shall herein refer to her as deceased 2. She then joined deceased 1, the accused
and the two minor children. Whilst deceased 2 was in the kitche n the accused
proceeded to the said kitchen and fired a shot at her head. Both deceased 1 and JJ
immediately ran out of the house. The accused pursued them firing further shots. JJ
was shot on the chest whilst deceased 1 was shot on her buttock and was

was shot on the chest whilst deceased 1 was shot on her buttock and was
subsequently shot on her head. Both deceased 1 and 2 died on the scene and JJ
who was critically injured was rushed to RK Khan Hospital where he received
emergency medical assistance. The accused drove away at high speed and fled
from the scene.


4 JS v State Eastern Cape Division 2025 (2) SACR 204 (ECMk) paras 25, 26.

6
[13] The State avers that the accused acted with the requisite premeditation. To
elucidate these allegations, it led evidence of his conduct prior and after the incident
and prior domestic violence against deceased 1 . To this end the State led the
evidence of Mr K […] who is the stepfather of deceased 1 and the husband of
deceased 2. He testified that on the day of the incident his wife was busy cooking
Sunday dinner when she was requested to go to her daughter because the accused
had arrived. Against his adv ice she proceeded to the said premises. Mr K […]
subsequently heard the accused’s car which was parked in front of his daughter’s
yard drive off at high speed. When he went to investigate, he was shocked to find
that both his daughter and his wife had been shot to death. He testified that in the
early hours of the following morning he was contacted by the accused who told him
that he should have been present in order to make him kneel like his wife. He also
testified about an incident where his daughter contacted her mother but he
overheard the accused insulting his daughter and their subsequent fight. In addition,
he observed at one stage a healed injury to his daughter ’s ear and cheek. She
initially attempted to hide the said injury but she eventually disclosed that she
sustained the injuries as a result of the assault by the accused. The latter part of his
evidence amounts to hearsay which is inadmissible. However , this evidence was
provisionally admitted , pending the prosecution’s application for this and other
hearsay evidence to be admitted.

Trial within a trial
[14] The State applied in terms of s 3(1)(c) of the Law of Evidence Amendment Act
45 of 1988 (‘LEAA’) for the admissibility of deceased 1, Z[...] M[...]’s sworn affidavit
deposed to in support of her application for a protection order in terms of the Section
6 Domestic Violence Act 116 of 1998 and the relevant application. The admissibility

6 Domestic Violence Act 116 of 1998 and the relevant application. The admissibility
of the said documents was opposed by the accused and the court entered into a trial
within a trial to determine its admissibility. The State proceeded to lead the evidence
of Ms. N[...] D[...] and Ms N[...] M[...]. For the defence, Mr Ndlovu and his mother,
Mrs Bongekile Lucia Mkhize testified.

[15] Ms D[...] testified that she is employed as an Administrative Clerk in the
domestic violence section at Chatsworth’s Magistrate’s Court. He r duties entail
processing of domestic violence applications. She outlined the process when an

7
applicant approaches the court seeking a protection order. In brief she would provide
the applicant with the rel evant application, form 6, which must be completed by the
applicant in his or her own handwriting. When she has finished she would confirm if
the information is true and correct and would administer the oath in line with the
Justices of the P eace and Commissioners of Oath s Act 16 of 1963 (‘Justices of
Peace Act’) and the applicant would sign. She would then take the applicant to
appear before a magistrate who will conduct the necessary interview in her
presence. The magistrate will decide whether an interim protection order or a notice
to show cause should be issued.

[16] The abovemention ed process was conducted in respect of deceased 1’s
application as reflected in Exhibit AA and an interim protection order was
subsequently issued by the magistrate. According to Ms D[...] there are no records of
service of the interim protection order. The chief allegations made by the deceased
in Exhibit AA is that the accused has been assaulting her for the last ten years that
they have spent together. She then detailed a few acts of assault as follows. One
incident in December 2021 where they fought over his girlfriend and the accused
assaulted and shot at her. The firearm was taken by his brother. Another incident
where he assaulted her causing her ear and cheek to be cut. Her cheek was
subsequently stitched. In the affidavit deceased 1 stresses that the accused owned
an illegal firearm and had threatened to kill her and family. Ms. N[...] M[...] is the
eldest child of the deceased 1 and the stepdaughter of the accused. She confirmed
witnessing the above incidents and she is the one who called the accused’s mother
and brother who subsequently took the firearm away from him. Whenever these
assaults occurred they would sleep over at the neighbour residence with the
assistance of the accused ’s mother. She also added incidents of assault whilst she

assistance of the accused ’s mother. She also added incidents of assault whilst she
stayed with the accused and deceased 1 in Johannesburg. She alleged that most of
the assaults occurred when the accused had consumed alcohol.

[17] When the accused testified he denied the allegations of assault on deceased
1. Whilst he accepted that he lived with deceased 1 and his stepdaughter N[...] M[...]
in Johannesburg and subsequently at his home in Mbulwane , he denied incidents of
assault on deceased 1 and alleged he never possessed a firearm. He described the
relationship with deceased 1 as good and that like any relationship it had its ups and

8
down. Regarding the specific allegations outlined in the deceased ’s affidavit, the
accused denied the assault and the use of a firearm. In fact, he denied that the
affidavit in question was written by deceased 1 because it was not her handwriting.
Deceased 1 had previously written letters to him and he had seen her curriculum
vitae and thus knew her handwriting. In support of his allegations Mrs. Bongekile
Mkhize who is the accused mother also disputed allegations of assault on the
deceased whilst they resided together in Mbulwane. She denied coming to deceased
1’s rescue by breaking the window during an assault on the deceased. That was the
evidence of both parties during the trial within a trial.

[18] The State submitted that the hearsay evidence of deceased 1 must be
admitted in terms of s 3(1)(c) of the Law of Evidence Amendment Act (LEAA)
because the interest of justice requires its admission. It was argued that the said
affidavit not only meets the threshold of admissibility as provided in the LEAA but
considering factors outlined in S v Kapa 5 the deceased affidavit is reliable and
consistent with the broader evidence presented by the State. It also completes the
picture of the accused conduct, intent and motives. The defence submitted that the
affidavit must not be admitted because it is prejudicial to the accused and infringes
upon his rights guaranteed in the Constitution of the Republic of South Africa Act 108
of 1996 to challenge the evidence against him. It was also argued that the accused
placed in dispute whether the affidavit was written by deceased 1. He also denied
the assault and was supported in this regard by his mother.

[19] After considering the evidence and the submission of both parties I ruled that
deceased 1s affidavit is admissible. I set out the reasons for th is decision below.
Section 3(1) of the LEAA reads as follows:
‘Subject to the provisions of any other law, hearsay evidence shall not be admitted as

‘Subject to the provisions of any other law, hearsay evidence shall not be admitted as
evidence at criminal or civil proceedings, unless-
(a) …….
(b)…….
(c) the court, having regard to-
(i) the nature of the proceedings;
(ii) the nature of the evidence;

5 S v Kapa 2023 (1) SACR 583 (CC) para 77.

9
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might
entail; and
(vii) any other factor which should in the opinion of the court be taken into
account,
is of the opinion that such evidence should be admitted in the interests of justice.’
It is clear from the reading of the act that as a general rule hearsay evidence must be
excluded. It is trite that courts are hesitant to admit hearsay evidence that is decisive
in convicting an accused or plays a significant part in the conviction of the accused.
The admission of such evidence must only be entertained where there are
compelling reasons to admit it. Thus Section 3(1) (c) operates as one of the
exceptions to the rule where the court in its discretion forms an opinion that it is in
the interest of justice to admit such evidence , regard being had to the factors listed
therein. These factors have been judicially explained in a plethora of cases.6 I turn
to consider these factors in relation to this matter.

Nature of the proceedings
[20] These are criminal proceedings wherein the accused rights to liberty may be
affected in light of serious murder charges he faces. It is for this reason that our
courts are less likely to admit hearsay evidence in criminal proceedings as compared
to other proceedings. However , the interest of justice may be a compelling factor in
favour of its admission.

Nature of evidence
[21] What must be determined here is whether the evidence in question is reliable.
The court must weigh its probative value against potential prejudice. In this matt er
the State wishes to introduce a sworn affidavit of deceased 1 deposed to during her
application for a protection order. The said statement ou tlines incidents of prior

application for a protection order. The said statement ou tlines incidents of prior

6 S v Nd hlovu and Others 2002 (6) SA 305 (SCA) ; S v Kapa 2023 (1) SACR 583 (CC) ; S v
Ramavhale 1996 (1) SACR 639 (A) ; S v Mbanjwa and Another 2000 (2) SACR 100 (D) and Van
Willing and Another v S [2015] ZASCA 52.

10
abuse and violence against the deceased, the use of a firearm during the assault
and threats to kill her and her family.

[22] Whilst our courts have expressed an aversion to admit hearsay evidence on
the basis that it is generally unreliable and not tested by way of cross examination ,7
the reliability of this statement in this matter is strong for a variety of reasons. The
said statement was deposed to under oath in terms of the Justices of Peace Act. It
was also contemporaneity made in the process of formal court application for a
protection order as envisaged in the Domestic Violence Act . It further corroborates
the evidence of deceased 1’s daughter, N[...] and the close relationship between the
allegations in the statement and the subsequent evidence against the accused in the
murder of the deceased and her mother.

The purpose of tendering the evidence
[23] The statement provides a crucial picture of the relationship between the
accused and deceased 1. The statement does no more tha n to corroborate the
evidence of the State witnesses in particular the deceased father, Mr Khumalo and
deceased 1’s daughter, N[...] regarding their evidence of prior abuse and threat to kill
the deceased and her family. It plays no primary role regarding the guilt or otherwise
of the accused on the allegations of murder and unlawful possession of firearms. It is
common cause that the State relies on other evidence and witnesses against the
accused.

The probative value of the evidence
[24] When it comes to the definition of the probative value of the hearsay
evidence, I can do no better than to borrow from Ndhlovu8 who describes it as
follows:
‘Probative value’ means value for purposes of proof. This means not only, ‘what will the
hearsay evidence prove if admitted?’, but ‘will it do so reliably?’ In the present case, the
guarantees of reliability are high. The most compelling justification for admitting the hearsay
in the present case is the numerous pointers to its truthfulness.’

in the present case is the numerous pointers to its truthfulness.’


7 See Savoi and Others v National Director of Public Prosecutions and Another 2014 (1) SACR 545
(CC).
8 See fn 6 above para 45.

11
[25] It is axiomatic that the statement caries significant probative value. The
statement was sworn to by deceased 1 in the presence of Ms D[...] in the course of
her duties as an administrative clerk at Chatsworth Magistrate’s Court and was
repeated before a judicial officer who issued an interim protection order as a result.
The allegations contained in the affidavit , in particular, the assault and injuries to the
deceased and the use of a firearm by the accused is corroborated by Mr Khumalo
and Ms N[...] M[...]. There are compelling reasons for admitting the hearsay affidavit
in this matter due to the strong pointers of its truthfulness.

Reasons the evidence is not given by the deponent
[26] It is common cause that Ms Z[...] M[...] is the deceased on count 1 and the
accused faces the charges relating to her death and that of her mother.

Prejudice to the accused
[27] The main prejudice to be suffered by the accused is the inability to cross
examine the deponent and test the credibility and reliability of the allegations against
him. This however is not the only consideration. The accused still has an opportunity
to challenge the reliability of the affidavit when the totality of the evidence is
evaluated. The court must also consider the reliability, the probative value and
indicators of the truthfulness of the statement. Ultimately the overriding
considerations of the interest of justice must play an important role.

[28] It must however be emphasised that the fact that the admissibility of the
hearsay evidence will strengthen the State’s case does not amount to prejudice to
the accused. In Ndhlovu9 the Supreme Court of Appeal (‘SCA’) stated:
‘Where the interests of justice require the admission of hearsay, the resultant strengthening
of the opposing case cannot count as prejudice for statutory purposes, since in weighing the
interests of justice the court must already have concluded the reliability of the evidence is

interests of justice the court must already have concluded the reliability of the evidence is
such that its admission is necessary and justified. If these requisites are fulfilled, the very
fact that the hearsay justifiably strengthens the proponent’s case warrants its admission,
since its omission would run counter to the interests of justice.’

Any other factor

9 ibid para 50.

12
[29] It is important to restate the trite principle that the decision of the court must
take into account all the evidence. Where such evidence is reliable, probative and
corroborated as in this matter, the demands of interest of justice cries out for its
admission. For reasons outlined above I am satisfied that the State succeeded in
establishing the admissibility of deceased 1’s statement and the said statement was
accordingly declared admissible.

[30] Turning to the remaining allegations against the accused, it was also the case
for the prosecution that long before the incident and in particular on 8 February 2021
at the accused ’s residence members of South African Police Service (‘SAPS’)
descended at the residence of the accused in Mbulwane , Greytown. They had
received information that the accused was in possession of a firearm illegally.
Sargent Mzimela and his crew S ergeant Mthethwa proceeded to the accused ’s
home around 11 .30 pm. On their arrival they knocked on the door of his two-room
house and announced themselves as police officers. The accused opened the door
and gave them his name which matched the details provided. S ergeant Mzimela
requested to search for a firearm on his premises and the accused agreed. Sergeant
Mzimela conducted the search whilst Mthethwa was observing the events. S ergeant
Mzimela retrieved a 9mm firearm from underneath the mattress . This firearm was
described as a black Glock with serial number U[...] 6[...] and had one magazine with
one live round ammunition.

[31] When the accused was asked if he possess es a licence for the said firearm he
stated that he does not have any. He was informed of his rights and he informed the
said officers that he bought the said firearm from unknown boys at Maphumulo. He
was thereafter placed under arrest and was detained at Matimatolo police station.
The said firearm was then handed over to the CSC Commander S ergeant

The said firearm was then handed over to the CSC Commander S ergeant
Dumakude. This was after it was entered into the SAP 13 register number 35/2021.
Sergeant Dumakude confirmed the above and testified that he kept the said exhibit
in the safe and keys were always in his possession. The Investigating Officer,
Sergeant Manzini booked out the exhibit and transported it to Amanzimtoti ballistic
unit where the said exhibits were tested. Indeed, Warrant Officer Shozi who filed a
statement in terms of s 212 of the CPA . He confirmed that he examined one , 40

13
calibre Glock semi-automatic firearm with serial number U[...] 6[...] and determined
that it was designed to fire centre fire ammunition.

[32] The State also accuses Mr Ndlovu of unlawful possession of another firearm on
6 August 2023. The foundation of this charge is predicated on the allegations that on
the above-mentioned date the accused was in possession and discharge d the
firearm that killed both deceased and attempted to kill his son JJ. The State’s
contention is that Warrant officer Mlambo from the local criminal record centre
attended the scene and uplifted four cartridge cases and 19mm a projectile or a
bullet. These were later examined by Warrant Officer Pillay, a Forensic Analyst from
the Forensic Science Laboratory at Amanzimtoti. He then determined that the said
cartridge cases were fired from the same firearm. The State contends that by
process of inferential reasoning the accused is guilty of unlawful possession of the
said firearm. The State then closed its case.

[33] I now deal with the defence ’s case. In brief the accused testified that he had
been in a relationship with deceased 1 for around 18 years and they shared two
children which I have referred to as JJ and DD. He described their relationship as
good but noted that it had its ups and down. He denied the allegations that he
assaulted deceased 1 and threatened to kill her and her family. He also denied he
owned an illegal firearm that he used to assault deceased 1 with.

[34] The accused and deceased 1 lived with their children in Mbulwane, a rural area
in G reytown. He testified that sometime in 2021, deceased 1 requested money to
travel to her home in Chatsworth, Durban to attend a relative’s funeral. Deceased 1
never returned and left behind the minor children with the accused . She
subsequently contacted him requesting that the children visit her. Indeed, on Friday
4 A ugust 2023 he transported the two minor children and left them with her in

4 A ugust 2023 he transported the two minor children and left them with her in
Chatsworth. He also left a sum of R800 with her to take care of the children.

[35] On Sunday 6 August 2023, he asked his cousin S[...] to accompany him in
order to pick up the children. Along the way S[...]’s friends contacted the latter and
requested that they must pass by their address in Umhlanga where they were having
a party. The accused and S[...] joined the party at Umhlanga, Durban where they

14
consumed a large amount of alcohol. Both of them were intoxicated but proceeded
with their trip to pick up the children in Chatsworth. On their arrival both alighted from
the car and entered the deceased residence. Whilst the accused and the deceased
were discussing an argument ensued regarding the whereabout of monies that he
left for the children and other funds that were in the account.

[36] The argument was heated to the extent that both were loud and shouting at
each other. The accused was upset and he took a firearm that was tucked on to the
waist of his cousin, S[...]. Upon seeing the firearm, the deceased threw the young
child at him. The accused does not recall what took place thereafter because of his
intoxication. The following day around 8 .00 am, he woke up at a particular home in
Maphumulo. When he enquired what had taken place, he was informed that he had
been lying on the side of the road and they assisted him with a place to sleep. He
subsequently made his way to his home in Mbulwane where he found his daughter
DD. The next day he travelled to Johannesburg to fix his motor vehicle.

[37] When he heard that police wanted him, he was scared of handing himself over.
However, he was subsequently arrested and made a statement before a magistrate.
The accused denied killing both the deceased and attempting to kill his son. When it
comes to the ch arge of unlawful possession of a firearm allegedly committed on 8
February 2021, the accused denied that a firearm was found in his possession. He
alleged that police arrived at his house and demanded firearms. They proceeded to
search the premises without his consent. When he was taken outside of the house,
police came out and informed him that they found the firearm under his bed. He flatly
disputed that he unlawfully possessed a firearm in any manner. The defence closed
its case.

Issues for determination
[38] As alluded earlier, both parties agreed on facts that are not disputed and this

[38] As alluded earlier, both parties agreed on facts that are not disputed and this
culminated to the accused’s admissions in terms of s 220 of the CPA. Consequently,
the following issues are common cause:
(a) The post mortem examination of the two deceased by Dr Ndlovu and h er
findings that the causes of deaths were contact perforating gunshot wound to

15
the head and distant perforating gunshot wound to the head involving the face
respectively are not in dispute.
(b) The two J88 reports compiled by Doctor Mundele outlining the injuries
sustained by JJ and the treatment he received at RK Khan Hospital were also
not in dispute.
(c) The photographs of the scene , the forensic ballistic examination and
findings regarding the exhibits recovered from the scene are not in dispute.

Consequently, the crisp issues that are to be decided are:
(a) Did the accused sho ot and killed both deceased with the necessary
premeditation and did he attempt to kill his son JJ.
(b) Is the accused guilty of unlawful possession of firearms and ammunition
(c) Is the accused defence of lack of criminal capacity by reason of intoxication
valid and is his general denial reasonably possibly true?

The law
[39] The onus always rests upon the State to prove that the accused is guilty of
the offences charged beyond a reasonable doubt. When it comes to firearms and
ammunitions charges, the State must still show the same standard of proof that the
accused possessed the above in contravention of the FCA. In evaluating whether the
State has achieved the onus resting upon it, the court must consider the evidence as
a whole. The case of S v Chabalala10 succinctly sets out what must be considered.
It was held that:
‘The correct approach to evaluating evidence is to weigh up all elements which point towards
guilt of accused against all those which are indicative of his innocence, taking proper
account of inherent strengths and weaknesses, probabilities and improbabilities on both
sides and, having done so, to decide whether the balance weighs so heavily in favour of
State as to exclude any reasonable doubt about accused's guilt . The result may prove that
one scrap of evidence or one defect in case for either party was decisive but that can only be
ex post facto determination and a trial court (and counsel) should avoid the temptation to

ex post facto determination and a trial court (and counsel) should avoid the temptation to
latch on to one (apparently) obvious aspect without assessing it in context of full picture
presented in evidence.’


10 S v Chabalala 2003 (1) SACR 134 (SCA) at p134F-I.

16
Evaluation
[40] The evidence of the two minor children, JJ and DD, regarding what took place
on 6 August 2023 was fraught with difficulties. DD testified that when the accused
arrived, there was an argument with her mother in her presence inside the house .
The accused went outside and fired a shot at the roof. This was followed by the
accused grabbing her and placing her into the car. The accused followed her mother
and shot her. Her evidence does not account for the shooting of her grandmother
which took place whilst she was inside the house. The allegations of the accused
shooting at the roof is inconsistent with the statement made to the police which
makes no mention of the accused shooting at the roof. She also admitted telling the
police that she saw the accused taking out a firearm and shooting her grandmother.

[41] The evidence of JJ also had its own challenges. He testified that on the
accused’s arrival, his mother told him to call his grandmother. He returned with his
grandmother and after an argument between his mother and the accused, he saw
the accused go to the kitchen where his grandmother was and thereafter heard a
gunshot. He and his mother went out running. His mother was behind him and he
futher heard another gunshot. This is when he was shot. He subsequently heard
another gunshot. However , under cross examination, he admitted that the accused
took the firearm from his cousin S[...]. In his evidence in chief he made no mention of
this and it is contrary to his statement to the police. When further asked under re -
examination, he stated he no longer remembers.

[42] It goes without saying that the two witnesses are minor children and the
testimonies of young witnesses may in general be susceptible to undue influence
and desires to impress others. Accordingly, caution must be applied when
considering the evidence of young witnesses. The court must consider all relevant
factors when evaluating their evidence. In S v Maila11 the court noted that:

factors when evaluating their evidence. In S v Maila11 the court noted that:
‘the evidence of a child must be considered as a whole taking into account all the evidence.
This means that , at the end of the case, the single child witness's evidence , tested through
(in most cases) cross examination should be ‘trustworthy’. This is dependent on whether the
child witness could narrate their story and communicate appropriately, could answer
questions posed and the n frame and express intelligent answers. Furthermore, the child

11 S v Maila [2023] ZASCA 3 para 18.

17
witness's evidence must not have changed dramatically, the essence of their allegations
should still stand. Once this is the case, a court is bound to accept the evidence as
satisfactory in all respects; having considered it against that of an accused person. ’

[43] The events were extremely traumatic to the said child witnesses. They
witnessed the gruesome killing of their mother and grandmother. JJ nearly lost his
life on that day. It is however clear that the two witnesses share a very close bond
with the accused and his family. Both witnesses have always and still reside with the
accused’s family. They also maintain constant contact with the accused despite his
incarceration and the serious allegations of killing their mother and grandmother and
attempt on the life of JJ. Both JJ and the accused confirmed that the la st
conversation between them was a week before trial. The conduct of the accused is
completely improper in light of his full knowledge that his children featured high on
the list of witnesses for the State. Sergeant Khambule also testified in details about
attempts by the accused family to hide the whereabouts of JJ on the trial date when
he went to pick him up . There is no doubt that the circumstances under which the
two minor children testified is untenable and the relationship between them, the
accused and his family provided a fertile ground for undue influence. No wonder their
evidence drastically changed which is a clear indication that the were influenced .
Their evidence became contradictory and unreliable regarding certain events that
took place on 6 August 2023. This court shall take into account their evidence where
it is consistent or corroborated by other or objective evidence.

[44] In this case the State has presented further evidence that paints a clear
picture of what took place leading to both the deceased death. The photographs and
key as taken by Warrant Officer Mlambo depicts a disturbing scene at 1[…] informal

key as taken by Warrant Officer Mlambo depicts a disturbing scene at 1[…] informal
settlement in Chatsworth. Photograph 45 shows deceased 2 lying face down in the
kitchen having been shot . The evidence of Doctor Ndlovu was that she was shot in
the head at a distance. The evidence before court clearly shows that the accused is
the only person who possessed a firearm after the argument with deceased 1. The
above taken together with JJ’s evidence that after the accused proceeded to the
kitchen where his grandmother was , he subsequently heard a gunshot strongly
implicates the accused in the murder of deceased 2.

18
[45] The same inference must be drawn regarding the murder of deceased 1.
Photographs one to 18 shows the deceased 1 lying in the pool of blood outside on
the side of the road . Again, Doctor Ndlovu found the deceased 1 had effectively had
4 injuries. In brief she had an injury on the left buttocks and the second injury is an
exit wound to her left thigh. The third injury would be an entry wound to the back the
head or scalp and the exit wound to the right frontal scalp. She determined that the
fatal shot is the head injury which had the presence of soot due to the barrel being
pressed on the head. This means the deceased was firstly shot on her buttocks
which did not cause instant death. This in turn is consistent with both child witnesses
that the accused followed the deceased 1 who was running away firing shots at her.
This strongly links the accused to her murder. It also implicates him in the shooting
of his son JJ who was running in front of his deceased mother.

The evidence taken as a whole leads to the inescapable conclusion that the accused
committed the said offenses. In Rex v Blom12 It was held that:
(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 only 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.’

[46] It also follows from the above that the case against the accused for unlawful
possession of a firearm without a licence on 6 August 2023 is strong. To sustain this,
charge the State relies on the evidence that the accused had possessed a firearm
which he used to shoot both the deceased and his son, JJ and that he had no lawful
authority or licence to possess the said firearm. The defence argued that no physical

authority or licence to possess the said firearm. The defence argued that no physical
firearm was recovered from the accused for the State to secure a successful
conviction. I do not agree that in all circumstances the State must show that a
physical firearm was recovered from the accused for a successful conviction on
unlawful possession of a firearm. There is overwhelming evidence supporting the
state’s contention. I have outlined some of the evidence earlier such as the existence
of soot in the deceased skull and the findings by Warrant Officer Pillay that the
exhibits were fired from the same firearm. It would also defy any logic that the

12 Rex v Blom 1939 AD 188 at p202-203.

19
accused may be held responsible for the deceased murder where a firearm was
used but avoid a conviction on unlawful possession of a firearm without a licence
using the same firearm merely because no actual firearm was recovered. Such a
conclusion would be contrary to the objectives of the Firearms Control Act 60 of
2000 which inter alia includes the prevention of proliferation and abuse of firearms,
to protect the right to life and the right to be free from all forms of violence. Whilst the
technical definition of a firearm must be satisfied, the existence of evidence that
shows that a firearm as envisaged in the Firearms Act was used, would be sufficient.
In S v Gcabashe and Another13 this court held:
‘Adopting the similar inferential process of reasoning it is inescapable that when the accused
shot and killed the deceased he was in possession of a firearm for the purposes of the Act
and that the 15 spent cartridges represents ammunition as envisaged the Act’

[47] When it comes to the charge of unlawful possession of a firearm and
ammunition on 8 February 2021, the evidence of Sergeant Mzimela and Mthethwa
was straightforward. They both corroborated each other that the firearm was
recovered under the mattress of the accused ’s two-room house. I have no reason to
reject their evidence. It was given in a clear and uncontradictory manner. Nothing
turns on the defence submission that no search warrant was presented and the
accused did not consent to the search in his house. Both officers testified that the
information received was that the accused was leaving in the morning and believed
that had they applied for a warrant it would have been issued to them. The search on
the accused’s premises without a warrant thus complies with s 22 of the CPA. The
said section reads:
‘A police official may without a search warrant search any person or container or premises
for the purpose of seizing any article referred to in section 20-

for the purpose of seizing any article referred to in section 20-
(a) if the person concerned consents to the search for and the seizure of the article in
question, or if the person who
may consent to the search of the container or premises consents to such search and the
seizure of the article in
question; or
(b) if he on reasonable grounds believes-

13 S v Gcabashe and Another [2023] ZAKZDHC 79 para 47; See also S v Jordaan and Others 2018
(1) SACR 522 (WCC).

20
(i) that a search warrant will be issued to him under paragraph (a) of section 21 (1) if
he applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object of the search.’

[48] It is clear from the reading of the section that the two officers were entitled to
conduct a warrantless search on the accused premises. In addition, had they
awaited the following day to apply for a search warrant, this would have defeated the
purpose of the warrant since the accused was due to leave his residence in the
morning. I am also satisfied with the chain and custody of the said firearm which was
subsequently transported to the ballistic unit at Amanzimtoti for testing. The evidence
of both sergeants’ Dumakude and Manzini on how the firearm was stored in the safe
at Matimatolo police station and subsequently transported for testing was clear .
What completes the State’s case is the s tatement in terms of s 212 of the CPA
compiled by Warrant Officer Vincent Shozi which found that the firearm in question
functions normally and was designed to fire centre fire ammunition.

[49] I now turn to deal with the defence’s case. The upshot of the accused defence
is that he was intoxicated and does not remember what happened on 6 August 2023.
Accordingly his defence, though vague in its formulation, raises a legal question
whether at the time of the offence, did the accused have the requisite criminal
capacity to commit the offence. It is trite that consumption of alcohol depending on
the degree may affect a person’s capacity to control, appreciate the nature and
consequences of his conduct, to appreciate the wrongfulness of their conduct and
may act impulsively. The court in Chretien,14 whilst distinguishing between voluntary
and involuntary intoxication concluded that in exceptional circumstances a person
may because of excessive consumption of liquor, completely lack criminal capacity
and not be criminally liable.

and not be criminally liable.

[50] The test to determine whether the intention has been excluded by intoxication
is subjective. 15 The court must ask itself whether in light of all the circumstances
including the degree of intoxication did the accused have the intention to commit
murder. The court may also draw conclusions about his state of mind from his

14 S v Chretien 1981 (1) SA 1097 (A).
15 S v Van Vuuren 1983 (1) SA 12 (A).

21
conduct before, during and after the events. This court must also not close its eyes
on the unassailable evidence against him . In S v E adie16 , the SCA confirmed the
court a quo finding and said the following:
‘He was right to consider the appellant's goal -directed and focused behaviour, before, during
and after the incident in question, as indicating presence of mind. The appellant was angry
with the deceased and intended to vent that anger. He intended to be violent and
destructive. All of his actions were performed with presence of mind. How can we believe
him when he says that his directed and planned behaviour was suddenly interrupted by a
loss of control over his physical actions when those actions are consistent with the
destructive path he set out on when he was admittedly conscious? The learned Judge
correctly considered the appellant's detailed account of the assault as an indicator of
consciousness. Griesel J was correct to conclude that there were no signs of true
disorientation subsequent to the event. The learned Judge's conclusion that the appellant's
deceitful behaviour immediately after the event should count against him cannot be faulted.
His finding that the appellant could not be believed about his State of mind at the relevant
time is wholly justified, as is the conclusion that the psychiatrists' evidence has to be viewed
against that fact.’

[51] The accused did not fare well when he testified and his version was poor. For
starters the accused alleged that he was not the driver of his motor vehicle when it
arrived in Chatsworth and after the incident. The evidence of his children was that he
transported them to Chatsworth. His son JJ testified that that when he arrived on the
day of the incident the accused was the driver. DD alleged that after the shooting he
grabbed her and drove her to Mbulwane, Greytown, a distance of approximately 2 50
km away from Chatsworth. Their evidence was undisputed and the first time the

km away from Chatsworth. Their evidence was undisputed and the first time the
accused alleged he was not the driver was when he gave his evidence . This was a
constant feature in his version which demonstrated he was fashioning his version as
he testified. From the evidence the roads at 1[...] informal settlements in Chatsworth
are in bad conditions and not straight but he was able to drive his motor vehicle. The
above is the first clear evidence that shows that his claim of excessive intoxication to
the point that he does not remember what took place when both the deceased were
shot and what he did thereafter is contrived.


16 S v Eadie 2002 (1) SACR 663 (SCA) para 66.

22
[52] The explanation of the events of that day by the accused is replete with
serious contradictions and inconsistencies. He testified that when the argument took
place he took a licenced firearm from S[...]. Upon seeing the firearm, deceased 1
threw the child to him. Firstly, it is improbable that S[...] will mount no resistance to
his licenced firearm being taken under those circumstances. Secondly he
contradicted his evidence whether the child was thrown to him or pushed towards
him. The accused also makes no mention of him cocking the firearm which suggest
that there was no discharge of the firearm by him. When pressed under cross
examination whether he did fire a shot, he claimed he does not remember. This
however contradicts the version he instructed his lawyer to put to the State
witnesses and his own s 220 admissions wherein he confirmed that he fired a shot
and thereafter does not remember what took place. It bears mentioning that this is
the same version he relayed to the magistrate upon his arrest. The accused ’s
version is a hallmark of a fabricated version and the claim o f loss of memory is a
convenient excuse aimed at evading accountability for his actions.

[53] It is also clear f rom his own evidence the accused has an excellent ability to
remember the vivid details of the events except the shooting and his escape from the
scene. The accused testified in details how he travelled with S[...] taking a long route
to Maphumulo and to Umhlanga where they joined the party. He was able to recount
in details the alcohol consumed ranging from three bottles Jameson (750ml), three
bottles of Johnny walker and 48 beers. He was able to remember traveling thereafter
to Chatsworth and the discussion he had with the deceased, the details of the
argument over money and the amount of money involved. However, when it comes
to the details of the shooting, he suddenly could not remember. I agree with Mr
Singh’s submission that the accused ’s evidence of intoxication has no substance

Singh’s submission that the accused ’s evidence of intoxication has no substance
and his claim of loss of memory is deliberately selective. His evidence that he woke
up in Maphumulo more than 200km away from the scene is inexplicable and an
attempt to hide his escape from the scene. His daughter, DD, contradicted h is
evidence and testified that he took her to the car and transported her to Greytown.

[54] The evidence before me shows that the accused’s actions were goal oriented
and designed to achieve the result. It is common cause that the argument occurred
at the deceased’s lounge. The evidence shows that the accused took out a firearm

23
and proceeded to the kitchen where he shot deceased 2. The evidence of Doctor
Ndlovu was that the shot was at a distance. That shot demonstrate s precision
contrary to an excessively intoxicated shooter. It does not end there, deceased 1 and
JJ ran away and w ere chased. Both were shot at a distance again demonstrating a
determination to achieve the goal. What is worse deceased 1 was subsequently shot
point blank and in execution style. This is proven by the presence of soot in her skull.
I have no hesitation that the accused is guilty of killin g both the deceased and
attempting to kill JJ. His defence of lack of criminal capacity by reason of intoxication
is rejected as false beyond reasonable doubt.

[55] What remains to be determined is whether the accused had the necessary
premeditation to commit murder. There is no definition of premeditation or planned in
the statute. In S v Raath17 the court defined it as follows:
‘Clearly the concept suggests a deliberate weighing -up of the proposed criminal conduct as
opposed to the commission of the crime on the spur of the moment or in unexpected
circumstances. There is, however, a broad continuum between the two poles of a murder
committed in the heat of the moment and a murder which may have been conceived and
planned over months or even years before its execution. In my view only, an examination of
all the circumstances surrounding any particular murder, including not least the accused's
state of mind, will allow one to arrive at a conclusion as to whether a particular murder is
'planned or premeditated'. In such an evaluation the period of time between the accused
forming the intent to commit the murder and carrying out this intention is obviously of
cardinal importance but, equally, does not at some arbitrary point, provide a ready -made
answer to the question of whether the murder was 'planned or premeditated'.’

[56] In support of its contention that the accused had long premeditated the

[56] In support of its contention that the accused had long premeditated the
murders, the State relied on deceased 1’s affidavit, deposed to in support of her
application for a protection order. From the reading of this statement it clear that the
accused has been abusive and extremely violent against the deceased. At one stage
deceased 1 was assaulted, and her cheek was cut to such an extent that she was
stitched. Another incident a firearm was used and the accused ’s brother removed it
from him. Of course, the accused denies the allegations. However, these incidents
are highly credible. They were corroborated not only by decease d 1’s daughter N[...]

17 S v Raath 2009 (2) SACR 46 (C) at p53D-F.

24
who witnessed the abuse but also the deceased ’s father who confirmed seeing the
above injuries on the decease d. This demonstrates a pattern of domestic violence
that deceased 1 suffered at the hands of the accused and living under constant
threat to her life. No wonder she ran away from the accused leaving behind her very
young children . What is also extremely relevant to this enquiry are the express
threats to kill the deceased and h er family. There is no other clear case of
premeditated murder where those threats are finally executed with precision with
deceased 1 literally being chased and executed. He did not end there he also
distastefully reminded M r Khumalo the following morning of the incident that he
should have been there to face death like his wife. This is a clear indication that the
accused had planned to carry out his threats of wiping off the deceased’s family. The
State has proved premeditation when the accused had shot and killed both
deceased.

[57] I am also satisfied that the accused is guilty of unlawful p ossession of a
firearm and ammunition as alleged on counts 5 and 6. The accused ’s evidence on
what took place on 8 February 2021 is contradictory and inconsistent. The version
he put to the State witnesses was that he shared the house with his three brothers.
This was also repeated by the defence during closing arguments. When the accused
testified he contradicted this and testified that when police arrived, he shared the
house with a female and a child. Even his reference to a Female was vague and
poor. Under cross examination he told the court that this was the deceased. It is
however clear that he regarded deceased 1 as his wife and mother of his children
because he paid Lobola and nothing prevented him from placing before court the
accurate status of the female he was with.

[58] The conspectus of the evidence is that the firearm was not only recovered in
his possession but that throughout he had been using and possessing illegal

his possession but that throughout he had been using and possessing illegal
firearms. The affidavit of deceased 1 lays this bare. N[...] also witnessed this and
testified that the accused fired a shot and the firearm was taken by his brother. There
is no hesitation that the accused was found in possession of the said firearm and
ammunition. The accused must also be convicted of unlawful possession of a firearm
on 6 August 2023 which must follow from its use in the killing of the deceased as I
have outlined above. The State however failed to show that the firearm in question is

25
a semi-automatic firearm in accordance with the technical definition in the Firearms
Act in order to invoke the applicability of the CLAA.


[59] In the circumstances the accused must be convicted on all counts.

Order
[60] As a result the following order is made:
1. Count 1. The accused is found Guilty of Murder read with the provisions of S
51(1) Part 1 of Schedule 2 of Act 105 0f 1997.
2. Count 2. The accused is found Guilty of Murder read with the provisions of S
51(1) Part 1 of Schedule 2 of Act 105 0f 1997.
3. Count 3. The accused is found Guilty of Attempted Murder read with the
provisions of S 51(1) Part 1 of Schedule 2 of Act 105 0f 1997.
4. Count 4. The accused is found Guilty of unlawful possession of a firearm in
contravention of section 3 of the Firearms Control Act 60 of 2000.
5. Count 5. The accused is found Guilty of unlawful possession of a firearm in
contravention of section 3 of the Firearms Control Act 60 of 2000 read with
the provisions of S 51(2) Part 2 of Schedule 2 of Act 105 0f 1997.
6. Count 6. The accused is Guilty of unlawful possession of an ammunition in
contravention of Section 90 of the firearms control’s Act 60 of 2000.




______________________
Hlatshwayo AJ

26

Reserved on : 31 July 2025
Delivered on : 5 August 2025


APPEARANCES

Counsel for the accused : Ms Z Fareed
Instructed By : Legal Aid South Africa


Counsel for the State : Adv. R Singh
Instructed By : Director of Public Prosecutions.