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

CASE NO: KS 21/2024
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO

In the matter between:

THE STATE

and

MABOITSHEGE, BUTIKI SIMON Accused


Neutral citation: The State v BS Maboitshege (KS21/2024)
Coram: Groenewaldt AJ

Date of Judgment: 02 September 2025
Summary: Charge – Murder, read with the provisions of Section 51(1) of Act
105 of 1997, as amended. Domestic violence relationship between accused and
deceased. State placed no reliance on direct or DNA evidence. Accused proffered a
Section 115 statement – elected not to testify or call any w itnesses. Court drew an
inference from the evidence led and found accused’s version so improbable that it
cannot be reasonably possibly true.


ORDER



1. The accused is found guilty on the charge of murder, read with Section 51(1) of
Act 105 of 1997, as amended.

2. The Registrar is directed to provide a copy of this judgment to the Head of the
Forensic Science Laboratory in P retoria to consider the taking of poss ible
disciplinary steps against Warrant Officer Emmanuel Phiwamandla Gwala, or
any other official responsible for failing to preserve and to keep the evidence in
a sealed evidence bag with reference PA5500042662 safe.

3. The Registrar is also directed to provide a copy of this judgment to the Head of
the Hartswater Local Criminal Centre (“LCRC”) unit to consider the taking of
possible disciplinary steps against Sergeant Modisaotsile Piet Tshabadira , or
any other official responsible for failing to extract sampl es from a bloodstained
stone and to dispatch it for DNA analysis.


JUDGMENT

INTRODUCTION:

[1] The accused, Mr Butiki Simon Maboitshege, was initially arraigned on two
charges, one being murder read with Section 51(1) of the CRIMINAL LAW
AMENDMENT ACT 105 of 1997 (“the CL AA”), as amended , and the other
defeating or obstructing the course of justice . The latter was withdrawn by the
prosecutor, Adv Kruger, before the accused could plead thereto.

[2] At the onset , and before the accused could plead to the remaining charge, I
explained to the a ccused the import and implications of the penal provisions of
the CLAA,1 the competent verdicts to which he could be found guilty on , as well
as admissions in terms of Section 220 of the CRIMINAL PROCEDURE ACT 57
of 1977 (“the CPA”).

[3] The above legal principles were explained to safeguard the rights of the
accused in relation to a fair trial, and furthermore to inform his legal strategy.

[4] The accused pleaded not guilty to the charge of murder which was put to him as
follows:

“That the accused is charg ed with murder read with Section 51(1) of Act 105 of
1997 as amended in that the accused on or about 26 or 27 February 2024 and
at or near Ikhutseng, Warrenton, in the district of Frances Baard, unlawfully and
intentionally killed M[...] N[...], an adult female.”

[5] The accused proffered a statement in terms of Section 115 of Act 51 of 1977 .
The salient facts are captured in paragraphs 6.1 - 6.13 thereof which reads as
follows:


1 Act 105 of 1997

“1. During the night preceding the day that I was arrested, M[...] N[...]
(hereinafter referred to as “the deceased”) was in and out of the house,
when I was already in bed . The deceased also came to sleep next to
me at a later stage. I stood up and locked the door.

“2. In the middle of the night, I woke up and the deceased was not there . I
went to look for her.

“3. At some stage, I was at SASSA and there were two people . I asked
them if they had seen a woman.

“4. I proceeded in the direction that the woman s howed me, and I crossed
the N12 and went into the veld.
“5. It was dark, and I saw someone . I went closer and saw that it was the
deceased. She was trying to stand up and did not have shoes on.
“6. I took the deceased, and helped her home, at one stage I carried her.

“7. When we arrived home, I put her on the bed, undressed her and wiped
the blood with a warm cloth.

“8. Even though I used a candle as a source of light, I was able to see that
she had blood on her, but I did not see the extent of the injuries that she
sustained.

“9. I wanted to dress the deceased, but she said no.
“10. The deceased slept, and after smoking I also went to lay down next to
her and sleep.

“11. When I woke up, I talked to the deceased, but she did not respond . I
also tried to wake her, but without success.

“12. I pulled the blanket from her head, and she did not move . I touched
her, and I could feel that she was cold.

“13. I went to ask for help, and I also went to the police and informed them
that I found my girlfriend in the veld having been assaulted, and that
she does not respond.”

[6] The accused in the aforesaid statement also made Section 220 admissions,
which were recorded as such. The admissions are as follows:

“1. The body of the deceased was that of M[...] N[...].

2. That the body of the deceased did not sustain any further injuries from
the time that she was declared dead until the medico-legal post-mortem
examination was conducted by Dr Jill Roman.”

[7] The Section 115 statement was received as evidence and marked Exhibit A.

[8] In an attempt to simplify the reading of the judgment, I have divided it into
various scenes.

SCENE 1:

[9] The first scene relates to the evidence led in relation to the events that
transpired before the fateful event. This scene plays itself out at a tavern called
Neo’s, and also to events preceding the incident.

[10] The State call ed Khotso Chwenyane (“Chwenyane”), an adult male who is
resident in Warrenton . Chwenyane testified in chief that he knew both the
accused, (also known as Zembe) and the deceased, as they grew up in the
same township called Ikhutseng. He recalled seeing M[...], being the nickname

of the deceased, the Monday at Neo’s tavern . The witness was working at the
tavern on the said night.

[11] According to Chwenyane, the deceased was troublesome and he ended up
reprimanding the deceased and the accused , who is also known as Zembe .
The witness explained that he reprimanded the deceased and the accused as
the deceased was troubling the accused . The accused then moved to another
seat and the deceased followed him.

[12] Chwenyane reported to the owner of the tavern, a certain Neo, what had
transpired. The owner went to the deceased, reprimanded her and told he r not
to return to the tavern the following day . Needless to say that the deceased
never returned . The tavern was closed at its normal closing time of 21 :00,
which was also at around that time that he last saw the deceased.

[13] The witness further testified that it was mostly the deceased who was
troublesome. He testified that the interaction between the accused and the
deceased would have escalated to a physical level had he not intervened . It
was the testimony of Chwenyane that the deceased was mildly dr unk and that
he saw her consuming alcohol.

[14] Chwenyane testified that the accused also consumed alcohol , but that the
accused understood what the witness was saying to him . The witness did not
observe any injuries to the deceased.

[15] Under cross-examination, he confirmed that the owner told the deceased not to
return to the tavern . The version of the accused was put to the witness which
included, amongst others, that the deceased left the tavern before the accused
did. The version was also put t o him that the accused went back to his home,
made food for himself at home, and at some stage he went to sleep and that the
accused was in and out of the house . In essence the Section 115 statement

was put to the witness , which response from him was that he does not know
anything about the version.

[16] The next witness was Neo Desmond Matsha (“Matsha”). The witness testified
in chief that he too resides in Warrenton and owns a tavern . Chwenyane is an
employee at his tavern . The accused and the deceased (also known as M[...])
are both known to him . On the night of 26 February 2024, the witness
encountered both the accused and the deceased at his tavern . The deceased
consumed alcohol but was not that drunk . Chwenyane reported to him that the
accused and the deceased started again with fighting . The witness’ response
was that it was what they were normally up to , and that he intended to chase
them away from the tavern . The witness then took them out of the tavern and
they left at around 20:00.

[17] Matsha testified that the deceased was pointing at the accused in the tavern .
After some time, the witness went to the home of the accused and the
deceased. He encountered the accused ( also known as Zembe) in front of the
house. He enquired from the a ccused what was happening , and the response
from the accused was that the witness knew how jealous the deceased was .
The deceased later arrived there . The witness informed the deceased that she
was no longer welcome at his tavern.

[18] The witness noticed that the left side of the deceased’s face was swollen in the
vicinity of the eye. The witness, referred to the deceased’s state of sobriety at
the house, as “heavily drunk”.

[19] During cross -examination, the witness confirmed that Chwenya ne told him at
the tavern that the deceased was troublesome . When the witness enquired
from the deceased why she was troublesome, her response was that he knew
how her “man” was . The witness testified that he banned the deceased from
his tavern in future, because he observed her pointing at the accused . It was

placed in dispute by the accused’s legal representative on behalf of the accused
that the witness did not go to the home of the accused and the deceased.

[20] Matsha was confronted with his statement which was handed in as Exhibit B,
as well as with the evidence of Chwenyane relating to where Matsha had
banned the deceased and the accused from attending his tavern, but he stuck
to his version. The accused’s version o f disputing the injury was also disputed
by the witness.

[21] The next witness was Obeth Obakeng Modise (“Modise”). The witness
testified in chief that he too resides in Warrenton . He knows the deceased and
the accused. Modise, between 21:00 and 22:00 the n ight of the event, heard
the accused swearing at the deceased at the tavern (by saying that the
deceased “is a whore and all men are having sex with her ”). The witness did
not see the altercation but only heard it . He also heard somebody saying that
the accused must stay away from M[...] (the “deceased”).

[22] Under cross -examination Modise testified that he heard Chwenyane and
Matsha reprimanding the accused not to assault his girlfriend and that the
accused swore. It was put to the witness that the owner of the tavern and his
employee, Chwenyane, had not testified that they reprimanded the accused .
The statement of the witness was received as Exhibit C.

[23] This evidence then concluded the first scene of events.

SCENE 2:

[24] This scene relates to the witnesses giving evidence of the events subsequent
and also prior to the incident relating to this matter.

[25] A witness by the name of R[...] M[...] was called by the prosecutor . The
deceased is the niece of the witness . The witness testified in chief that the
accused came to the home of the witness on a Monday . She observed that the
upper right lip of the deceased was swollen but she did not see any visible
injuries. This would be the last time that the witness saw the deceased . The
next day early the witness learned about the death of the deceased . The
deceased had 4 children, ages 17,15,10 and 4 or 5.

[26] During cross-examination it was pu t to the witness that the accused does not
know anything about an injury to the lip of the deceased.

[27] A police officer in the employ of the South African Police Services by the name
of Kegomoditswe Emaldah Mongale (“Mongale”) was called.

[28] Mongale testified that she has 19 years’ experience in the employ of the South
African Police Services. She is currently a Sergeant in the police. On the day
in question, being 27 February 2024, the station received a complaint of an
assault in B[...] Street. The witness accompanied by a certain constable Van
Der Nest went to the scene . There were people standing outside a property
which had no fencing.

[29] A certain lady by the name of A[...] S[...], informed them that she called to lodge
the said complaint. The witness testified that on entry to the house, they found
a person covered with a blanket laying on the bed . They uncovered the person
and she had bruises on her body . The person was naked and the witness
observed blood on the forehead of the deceased . The people in the residence
at the time were A[...] S[...], constable Van Der Nest and the witness herself .
There was also a child between the age of 2 and 3 years sleeping on the bed .
According to A[...] S[...], the deceased was the mother of the child.

[30] Whilst surveying the area, Mongale found a heap of ash at the back of the
house. The ash was still warm. A piece of material was visible in the ash which
was partly burned. The heap of ash is captured in the photo album which was
received as Exhibit H. The photograph depicts a yellow burned piece of
material. The heap of ash was only a few metres away from the residence
where the body of the deceased was found . Mongale asked the detective on
standby at the scene to contact the Local Criminal Centre for the taking of the
photographs. On a question from the Court, the witness could not elaborate on
whether the said home where the deceased was found had an electricity
connection or not. The witness was not cross-examined.

[31] A further witness by the name of Cecilia Bamphitile (“Bamphitile”) was called.
On the night of the 27 th, the exact month which escaped the witness, she went
with her boyfriend to the SASSA offices . It was around 24 :00 and they arri ved
early as the queue could turn out to be very long at the SASSA offices . While
they were standing at the offices, two people arrived there . The two people
were standing at the corner of the SASSA offices that was approximately 7
metres from the said offices according to Bamphitile. She did not know who the
people were at the time.

[32] The unknown man left the woman at the corner and came to where Bamphitile
and her boyfriend were standing. The female was left standing at the corner .
The area was not well lit as there was no light and it was overcast and dark .
The unknown man asked them whether they were queuing for SASSA and
when they looked at the c orner, the woman was gone . The next morning the
unknown man came with the police to the SASSA offices . The witness
identified the unknown man as the accused.

[33] The accused said to the police that he approached them in the evening and
asked them if they we re standing in the queue and the witness confirmed it .

asked them if they we re standing in the queue and the witness confirmed it .
The Section 115 statement was put to Bamphitile by the prosecutor that stated

that the accused said that he approached two people at SASSA and asked
them if they had seen a woman . Bamphitile’s response was that the accused
approached them and asked them whether they were queuing for SASSA . The
witness confirmed that the accused and the woman came together but they did
not leave together.

[34] Under cross-examination Bamphitile testified that she did no t consume alcohol
on the day she testified about . She also confirmed that the visibility was not
good. The version of the accused that was put to the witness was that the
accused was looking for his girlfriend and that the witness was one of the two
people he came across.

[35] It was further put to Bamphitile that she had told the accused that the witness
saw someone but that she did not know whether it was a female . Bamphitile
was adamant that she does not agree with it . The version of the accused was
further put to her that the accused went in the direction the witness showed him
where his girlfriend went . She denied the version of the accused that he had
asked them if they had seen a woman.

[36] In re-examination she eventually explained why she said the woman who was
with the accused was a female . She testified that the said individual had
breasts and for this reason the woman was female.

[37] The State prosecutor also called a witness by the name of Winnie Van Wyk . In
chief she testified that she is a 42 -year-old individual . That on 27 February
2024 she arrived at her home at approximately past 06:00 am after being with
her boyfriend. At some point the accused came to their house and asked her
mother for cigarettes , whereafter the mother gave the accused money to
purchase cigarettes. Her mother’s name is Susan Van Wyk . The witness did
not see the accused at their home as she was busy dressing herself . She then
asked her mother what had happened as her mother was not a person who

wakes up early and leav e. Her mother informed her that she went to call a
certain C[...] S[...], the aunt of the deceased. C[...]’s father and the grandmother
of the witness are brother and sister.

[38] Under cross-examination the version of the accused was put to her that he
never asked for any cigarettes but merely went to her to seek assistance for
what had happened with the deceased . Her response was that the accused
was looking for assistance that morning but also requested cigarettes. She was
also confronted with why th e issue of the cigarettes was not mentioned to the
police.

[39] A witness by the name of Susan Van Wyk (“Susan”) was also called . She
testified in chief that she is a 65 -year-old woman who resides at 5 […] B[...]
Street, Warrenton and that her daughter is Winnie Van Wyk . That on the 27 th,
she could not recall the month, she was sleeping when she heard M[...] (the
deceased) calling her “Oh Danny, Oh Danny”. She recognised the voice as she
knows the voice of the deceased . The deceased also lives in front of her home
across the street. The witness testified that Danny is her “huis naam” or house
name.

[40] She did not go out of her house because it was late . She estimated it was
around 22:00 to 23:00 when she herd the deceased calling her . The witness
fell asleep and the next morning the accused came to her home and requested
assistance as the deceased was not saying anything . The accused told Susan
that he had found the deceased in the veld being assaulted and bleeding .
Susan then went to C[...] S[...], the aunt of the deceased to tell her what had
happened. At the time the accused was sitting on his front porch.

[41] She further testified that the emotional state of the accused was the normal
Zembe (accused), like he was known . The accused did not tell her when he

had found the deceased in the veld . The screaming incident was her last
recollection of the deceased.

[42] Under cross-examination it was put to the witness that the accused did not sit
on the porch on the morning in dispute and that he went to his place with his
sister. The calling out of “ Oh Danny, Oh Danny” was however not disputed by
the accused.

[43] The next witness to t his scene was A[...] S[...] (“S[...]”). She testified in chief
that she is 63 years of age and that she is residing in Warrenton as well . The
deceased is the niece of S[...] and that she had deposed to a statement
regarding what had happened . On the 27th February 2024, S[...] was sleeping
between the hours of 06:00am and 07:00am when Winnie Van Wyk ( also
known as Lucky) arrived at her home . Lucky then took her to the home of the
deceased. When she entered the premises of the deceased, the accused ra n
from the head of the deceased to her feet.

[44] There was no lighting in the house but it was bright as it was sunrise . The
deceased was covered with a blanket and when the accused uncovered her the
deceased was lying on her back with her hands crossing eac h other . The
deceased was not moving and the witness asked the accused to call the police .
S[...] did not notice any injuries on the deceased . The accused told her that he
went looking for the deceased at SASSA and he found her assaulted in the
veld. The accused did not provide a time when the above occurred . That was
all the accused told S[...]. S[...] testified that she was confused when she
entered the house . She then sat outside with Susan and Winnie Van Wyk
waiting for the police.

[45] Under cross-examination it was put to S[...] that the accused went to the police
station to report the incident. Her response was that she instructed the accused
to go to the police.

[46] The last witness to this scene was Lorato More (“More”). Her testimony in
chief was that she resides at 2 […] B[...] Street, Warrenton. The accused and
the deceased were known to her as they were her neighbours for about a year .
Their home is next door to hers . On the night before the morning she heard
about t he death of the deceased, the accused and the deceased had an
altercation at approximately 20 :00. She testified that she heard the voices of
both the accused and the deceased . At one stage, the deceased was calling
for help by saying, “Danny he has started”. She could hear the accused and the
deceased moving around outside because their voices were clearer at times
than at others. The accused was also swearing at the deceased.

[47] As the altercation was prolonging, the deceased addressed the accused as
daddy. More testified that she did not go outside as the accused and deceased
were always fighting . The voices of the accused and the deceased are known
to the witness. The altercation went on for some time and after a while it ended
and the witness could not hear anything and fell asleep.

[48] The next morning More heard what had happened . She did nothing when she
heard the altercation as it was the norm between the accused and the
deceased and the next day the parties would pretend that nothing happened.

[49] Under cross-examination reference to the deceased saying “ Danny, sorry” was
brought to the attention of More who testified that the reference was captured
incorrect and should have been “Danny he had started ”. So too was the
contradiction between the testimony of the witness and that of Susan Van Wyk
in reference to the swearing of the accused brought to her attention. The
witness was also confronted with the fact that the swearing was not mentioned
in the statement. The statement was received as Exhibit G. The version of the
accused that he denied the altercation was also put to the witness. More stood
by her version.

SCENE 3:

[50] The next scene relates to the photographs taken of the scene. The witness that
was called in relation to the above was Modisaotsile Piet Tshabadira
(“Tshabadira”). He testified in chief that he is a Sergeant employed as a crime
scene investigator. He is responsible for the taking of photographs and where
exhibits are recovered it is his duty to package it and send it for analysis.

[51] He has 14 years’ experience in the South African Police Services with twelve
years thereof serving as draughtsman and photographer . He took photographs
depicting the crime scene in thi s matter and various exhibits and items as were
found. The said album and the key thereto were entered into evidence as
Exhibit H.

[52] The scene where the photographs were taken and exhibits collated, is not far
from the house where the deceased was found. A stone that appears to have
blood stains on it was photographed and forms part of the album as photo 47 .
No samples of the stone were , however, taken by Tshabadira and it was
booked into the store room of the police known as SAP13.

[53] This case is a classic example of mediocre, shoddy and ineffectual police
investigation by an ostensibly experienced police official . It boggles my mind
how no samples of such an important exhibit could not have been taken for
analysis. It will be remiss of me not to direct that this judgment be delivered to
the direct superiors of the official(s) responsible for the collation and d ispatching
of evidence for analysis so that disciplinary steps be considered.

[54] On that regretful note, this scene is closed.

SCENE 4:

[55] The last scene deals with medical and forensic evidence . Before the evidence
were led, the State prosecutor brought an application in terms of Section
158(2)(a) of the CRIMINAL PROCEDURE ACT 51 of 1977 for the tendering of
evidence via electronic media.

[56] The essence of the application was that it would be convenient to tender the
evidence virtually as all three the witnesses were stationed outside of Kimberley
and more specifically in Cape Town and Pretoria . Furthermore, the pathologist,
Dr Roman, was bo oked off sick and would only have been available on
1 September 2025. A further delay in this matter would not have been in the
interest of justice. It was also brought to my attention that the forensic analyst,
Dereshen Chetty, was unable to travel due to medical reasons . The other
analyst also appeared to have some medical reason which could hamper his
physical presence at Court.

[57] The aforesaid application was not opposed by the accused . I found that it
would be expedient, practical and convenient to tender the evidence of the
pathologist and the two forensic analysts by means of electronic media and
granted the application made in terms of Section 158(2)(a) of Act 51 of 1977 in
respect of all three witnesses.

[58] The State prosecutor called Dr Jill Roman (”Roman”), the forensic pathologist,
who conducted the medico -legal post -mortem examination on the deceased .
She is currently employed at the Department of Health in Cape Town . She was
previously stationed at the Kimberley Forensic Department . Roman has a
Bachelor’s degree in Medicine and Surgery obtained in 2007, a diploma in
Forensic Pathology and a Master’s degree in Forensic Pathology in 2021 . She
has been working as a forensic pathologist since 2014 and has done
approximately 2 500 autopsies in the past 11 years.

[59] Roman testified that she examined the body of a coloured female on 28
February 2024. Her findings were captured in her report which was received as
Exhibit D. The contents of the medico legal report were read into the record .
She captured the cause of death in the report as multiple unnatural blunt force
injuries to the head and body . The deceased suffered amongst other injuries,
multiple point abrasions across the front of the forehead and a partially
collapsed left lung. The accused was not big in stature, weighing approximately
50 kilograms and being 1.54 metres in height.

[60] Most of the injuries of the deceased were abrasions and bruises . The injuries
would not cause excessive bleeding but moderate amount of bleeding . In her
own words the bleeding would not be “blood soaked”.

[61] The pathologist testified that the body of the deceased was dragged on a hard -
rough surface, either a gravel or tar road . If any debris or gravel had been
found on the body, she would have noted it. According to her it is difficult to
pronounce on what type of object could have been used that caused the circular
and semi-circular injuries on the body of the deceased. She further testified that
she has not seen as many ring-like injuries as those on one body.

[62] The injury to the brain was evidence of significant blunt force impact to the head
according to the pathologist . She testified that 10 ribs of the deceased were
fractured and because of the rib fractures the chess cavity did not expand which
caused the left lung to collapse . Considerable force was applied to exert
injuries of this nature.

[63] The cause of death in layman’s terms was a combination of multiple blunt force
injuries to the head and body which culminated in the ultimate death of the
deceased. So too did the rib fractures and abrasions and bruises contribute to
the eventual death of the deceased . Though she initially contended that the

the eventual death of the deceased . Though she initially contended that the
injuries of the deceased are not consistent with that caused by a motor vehicle,

she conce ded in cross-examination that a motor vehicle cannot be excluded .
She testified further that the injuries the deceased sustained were all fresh
injuries.

[64] Under cross-examination, she testified that bruises do not have a friction
element but that it could be caused when the body makes contact with a hard
object. The pathologist confirmed that the dura mater of the deceased which is
a sack like structure that encloses the brain, was intact. No swelling of the brain
occurred as not enough time had elapsed from time of injury to death.

[65] Roman testified that the mechanism of death in the present matter was a
combination of multiple blunt force injuries . She elaborated that the
combination of injuries to the head, the severe chest injuries and the severe soft
tissue injuries resulted in the death of the deceased.

[66] In closing and in re -examination, she estimated the time of death as being 2
hours after the injuries were sustained . I gave M r Steynberg, acting for the
accused, an opportunity to examine further on this topic . In response to the
questioning, the witness said her opinion on the time of death is informed on her
experience and the fact of the severity of the injuries.

[67] The State prosecutor, Ad v Kruger, called a second virtual witness . Warrant
Officer Dereshen Chetty ( “Chetty”) testified that he is attached to the biology
section of the Forensic Laboratory Science department of the South African
Police Services in Arcadia . He pos sesses a Bachelor of Technology degree
majoring in Bio Technology, obtained at the Durban University of Technology .
As part of the above -mentioned course is Molecular and Cellular biology which
is relevant to DNA.

[68] Since being attached to the Biology Sect ion of the Forensic Science Laboratory
from 1 February 2013, he received training in serological and DNA techniques

which has afforded him the knowledge and skills needed for forensic biological
analyses. In total he has approximately 19 years’ experience in Biological
Science.

[69] As an introduction , Chetty testified that the acronym DNA stands for
Deoxyribonucleic Acid. Each person’s DNA is the same in all of their cells and
it is unique, except for identical twins. This basically means that the DNA found
in your skin cells, are the same as the DNA found in your saliva cells which are
the same as found in your hair cells.

[70] For analysis the laboratory uses a kit that examines the DNA strand at 15
unique places and a gender marker . It is the combination of all these points of
analysis plus the gender marker that makes the DNA profile unique . He
referred to a DNA analysis system captured in table format and referred to as
Table 1. The table shows the sample of analysis on the left-hand side, next to it
the gender marker . Where the table shows the letters X:Y it indicates a male
profile and where it depicts the letters X:X it depicts a female profile . Following
on that are the 15 different points of analysis . In the table one would find the
DNA result for the belt . There was blood found on this belt . What was found
from the sample was a mixture profile.

[71] From the results on the table, one is able to read in the reference sample of the
accused and the reference sample of the deceased into the DNA mixture result
obtained from the blood found on the belt . The statistical probability of finding
this profile again is 1 in 5.4 million people . Because it was a mixture profile, the
blood does not belong to 1 profile but to multiple ones.

[72] Chetty testified that he cannot say with certainty that the DNA came from both
the deceased and the accused.

[73] The next sample analysed was the pair of trousers . The profile is an exact
replica from the profile received from the deceased.

[74] The next item for analysis was the t -shirt which tested positive for presumable
blood. This profile matched the reference sample received of the deceased
except at D16 . This profile is classified as a low-level mixture. What caused
the low-level mixture, there could be a transfer or handling of the item.

[75] Then there were analysis done on hand swabs, swabs, t -shirt and pair of jeans.
The hand swabs, swabs, t -shirt and the pair of jeans contains the DNA of the
deceased. No DNA was obtained from 10 exhibits as listed in Chetty’s report
which was received as Exhibit E.

[76] Chetty was questioned as to how the exhibits reaches him as analyst . He
testified that the exhibits are normally received by the case reception from the
investigating officer or person who delivers it . The exhibits are then transferred
to an evidence recovery analyst, which individual does the presumptive testing .
The exhibits that are tested positive are submitted into the DNA analysis
process. When it is submitted each sample is given a unique identifier relating
to the station and CAS number of the case.

[77] Using that identifier station and CAS number, the analysts are able to draw all
DNA profiles that are relevant to the case . The analysts then work wit h the
details of the covering minute to match the DNA profile with reference samples
that were received . The analyst receive s processed data and does not have
any evidence bag or sample when he/she does the analysis.

[78] In this case an admin clerk by the na me of Sharinda received the exhibit bags .
It is then relayed to the evidence recovery analysts . The evidence recovery
analysts breaks the seals of the sealed evidence bags . The evidence recovery

analyst in this case was Warrant Officer Emmanuel Phiwaman dla Gwala
(“Gwala”).

[79] Chetty testified further on the additional statement he made that the analysis
taken on the exhibit bag relating to a burnt piece of material likely from a t -shirt
was not analysed.

[80] Under cross-examination he was referred to the table of analysis and
particularly to the D16 column of the t -shirt where reference was made to the
fact that the accused has a number eleven in his allele at D16 . Chetty
conceded that it does not necessarily mean that the DNA that is found on the t -
shirt was that of the deceased . He further testified that there are multiple
people with a number eleven allele at D16.

[81] The final witness relating to forensic analysis was that of Emmanuel
Phiwamandla Gwala (“Gwala”). Gwala testified that he is a forensic an alyst
attached to the biology section of the forensic science laboratory in Pretoria. He
is part of the evidence recovery unit with the rank of Warrant Officer. He has 19
years’ experience in the biological sciences.

[82] Gwala testified that he was the evidence recovery analyst . He receive d the
exhibits in sealed bags, which seals he broke before the testing commenced.

[83] In relation to the exhibit which contained the t-shirt, he testified that the seal was
not opened. Gwala confirmed that the t -shirt was misplaced and therefore was
lost. He does not know what happened to the evidence bag relating to the t -
shirt, despite it being under his control.

[84] Under cross-examination Gwala’s attention was drawn to his contradiction on
whether he had broken the seal on the exhibit bag or not . In his statement
Gwala mentions that he broke the seal on the said exhibit bag and in his

testimony under oath he stated that he had not broken the seal on the said
exhibit bag . On being pressed on the lost evidence bag, he refers to the
missing exhibit as a “slight mistake”.

[85] DNA evidence is a vital cog in criminal investigations . DNA evidence collected
from a crime scene can be linked to a suspect or can eliminate a suspect from
suspicion. It plays an important function in the administration of justice.

[86] DNA evidence is the voice of the voiceless and speaks on behalf of those who
are unable to tell their story . The collection and preservation of DNA evidence
requires scientific precision and where that evidence is dealt with in a negligent
fashion, it can hardly be referred to as a “slight mistake” . It will be remiss of me
not to refer this “slight mistake” for consideration for possible steps to be taken.

[87] After the tendering of evidence led from scene 1 to scene 4, Adv Kruger closed
the State’s case and Mr Steynberg on behalf of the defence followed suit. The
prosecutor argued for a conviction, and the defence for an acquittal. The State
further argued that it would not place any reliance on DNA evidence for a
conviction.

ANALYSIS:

[88] The onus of proof in a criminal trial rests on the State. That means t he State
has to discharge its onus beyond reasonable doubt . There is no onus on an
accused to prove his or her innocence or convince the court of the truthfulness
of any explanation that he or she gives . In S v Jo chems 1991(1) SACR (A) at
211 E-G, the court stated the legal position as follows:

“Where the onus is clearly on the State, the suggestion that the accused were
obliged to convince the court or persuade the trial court of anything is
misplaced.”

[89] It is also not enough to reject an accused ’s version on the basis that it is
improbable only. An accused’s version can only be rejected once the court has
found that on credible evidence, it is false beyond reasonable doubt.

[90] In instances where the State has made out a case which calls for an answ er
from the accused and the accused elects not to testify, he does so at his own
peril. The right to silence was dealt with eloquently in S v Boesak 2001(1)
SACR (CC) in which it was stated that:

“The right to remain silent has application at different stages of a criminal
prosecution. An arrested person is entitled to remain silent and may not be
compelled to make any confession or admission that could be used in evidence
against that person. It arises again at the trial stage when an accuse d has the
right to be presumed innocent, to remain silent, and not to testify during the
proceedings. The fact that an accused person is under no obligation to testify
does not mean that there are no consequences attaching to a decision to
remain silent during the trial. If there is evidence calling for an answer, and an
accused person chooses to remain silent in the face of such evidence, a court
may well be entitled to conclude that the evidence is sufficient in the absence of
an explanation to prove th e guilt of the accused . Whether such a conclusion is
justified will depend on the weight of the evidence.”

What is stated above is consistent with the remarks of Madala J, writing for the
Court in Osman and Another v Attorney -General, Transvaal , when he said
the following:

“Our legal system is an adversarial one . Once the prosecution has produced
evidence sufficient to establish a prima facie case, an accused who fails to
produce evidence to rebut that case is at risk . The failure to testify does not
relieve the prosecution of its duty to prove guilt beyond reasonable doubt . An

accused, however, always runs the risk that, absent any rebuttal, the
prosecution’s case may be sufficient to prove the elements of the offence . The
fact that an accused has to make such an election is not a breach of the right to
silence. If the right to silence were to be so interpreted, it would destroy the
fundamental nature of our adversarial system of criminal justice.”

[91] The accused opted to provide a Section 115 sta tement setting out the basis of
his defence. In S v Malebo and Others 1979(2) SA 636 B it was found that
exculpatory statements in plea explanations should, as a general rule, be
repeated under oath in the witness stand for it to have any value in favour of the
accused. The jurisprudence on this point can also be found in S v Mkhize
1978(2) SA 249 (N) at 251 B where it is stated that:

“It follows that any statements made by an accused or any answer to questions
put to him in terms of Section 115 has no evidential value.”

[92] The evidence of Chwenyane and Matsha paints a pictu re of the events at the
tavern earlier on the night of 26 February 2024 . This was a picture of the
accused and the deceased having an altercation . The contradiction relating to
where Matsha had banned the aforesaid individuals from entering his tavern in
future, is not material . The witnesses corroborate each other to the extent that
an altercation took place earlier on that night . The accused led no evidence to
rebut this evidence. There is no reason for this Court not to accept the
evidence of the aforesaid individuals as credible. The contradictions are
insignificant, and they actually militate against any conspiracy between the
witnesses.

[93] The evidence of Modise corroborates the above witnesses to the extent that the
said witness heard an altercation between the accused and the deceased at the
tavern. The words relayed by the witness were to the effect that somebody told
the accused that he must stay away from the deceased . The witness also

testified that he heard the accused swearing at the decea sed. The
contradiction between this witness and Chwenyane and Matsha regarding the
fact that the latter two did not testify that they had reprimanded the accused not
to assault the deceased, does not erase the fact that there was some kind of
altercation between the accused and the deceased . The contradiction as to
who had said exactly what does not negate the fact that an altercation occurred.

[94] The evidence of the neighbour, More, was that she heard the accused and the
deceased being involved in an altercation at around 20 :00, the exact time which
had escaped her . The witness testified that the accused was al so swearing at
the deceased and at one point she heard the deceased calling to a certain
“Danny” for help with the words, “Danny, he has started”. The contradiction that
the witness had not mentioned anything about the swearing in her statement
and also t o the contradiction that the deceased had said “ Danny, sorry” in her
statement and “ Danny, he had started ” under oath was argued by the defence
as material . The witness explained that the reference to “ Danny, sorry” was
incorrect and must have been lost in translation.

[95] More testified that the exact words were not recorded correctly by the police
who took her statement. The reference to the calling to “ Danny” was confirmed
by Susan Van Wyk . To expect witnesses to relay words spoken verbatim is to
hold human recollection to unrealistic expectations . More was a witness who
gave a calm, assured and credible recollection of the events on the night in
question. The contradictions were not material in the determination of the
matter.

[96] Credibility cannot be affected by every error made by a witness, and there is no
rule of thumb for assessing credibility. 2 The contradictions are insignificant
and are to be expected from an honest, but imperfect recollection, observation

and are to be expected from an honest, but imperfect recollection, observation
and reconstruction of the evidence. More simply testified on what she heard,

2 S v Oosthuizen 1982 (3) TPD p576 para G

and never extended her testimony beyond what she had heard. More created a
good impression on the Court and she is henceforth found to be a credible
witness. The accused did not rebut the evidence of More with credible
evidence. The dispute of the altercation in the form of a version put to the
witness without testimony under oath, provides no evidential value at all.

[97] In addition to the testimony of More, was the evidence of Susan Van Wyk who
corroborates the call the deceased made to her in the form of “ Oh Danny ,
Oh Danny” at approximately 22 :00 or 23:00. She testified that she did not look
at the exact time . The accused did not dispute to the witness that these words
were uttered neither did he tender evidence to counter this . The evidence of
Susan Van Wyk in relation to the “ Oh Danny ” call is uncontested . The said
witness gave a calm recollection of events and stood firm on her version . She
created a good impression on the Court and I find her to be a credible witness.

[98] The defence argued that after Matsha had left the home of the accused and the
deceased, that the fighting had been concluded. According to the defence the
fighting that More testified about had concluded when Matsha left the accused’s
home, which was at about 21:00, and that between the hou rs of 21:00 to 24:00,
there were no further altercations between the accused and the deceased. I fail
to see how reliance on an inaccurate and estimated timeline can lend credence
to the submissions that the accused di d not cause the demise of the decease d.
The neighbour (More) and Susan Van Wyk gave no exact time of when exactly
they heard the call of “ Danny, Oh Danny ”. Both their time frames were
estimates. Susan Van Wyk testified that she heard the said “ Oh Danny ” call
around 21:00 to 23:00. Susan Van Wyk specifically testified that she was not
looking at the time. More testified that she had heard the distress call at
around eight o'clock (20:00).

around eight o'clock (20:00).

[99] What is significant is not the exact time when the “ Oh Danny” call was made,
but the fact that the call to “ Oh Danny” was indeed made. More testified that

the deceased and the accused were moving around whilst having the
altercation, which supports the State’s submission that the deceased was
assaulted in the vel d nearby to the home of the deceased and the accused.
The point in dispute is not that the deceased was assaulted, but who assaulted
the deceased.

[100] The defence also argued that the Court should draw a negative inference from
the State’s decision not to call the boyfriend of Bam phitile. The argument was
that Bamphitile had testified that her boyfriend knows the accused and the
deceased and could have confirmed whether the woman who was with the
accused that night was the deceased or not. Accordingly , the defence argued
that the inference can be drawn that the boyfriend could have exonerated the
accused. The State argued that the inference the defence requested to be
drawn is not the only inference, as another inference could be that the boyfriend
would not have been able to confirm the woman’s identity, because it was dark
and the area was not well lit, according to Bam phitile. According to the State,
the aforesaid could also be the reason why the witness was not called.

[101] I am satisfied that Bamphitile was a reliable and trustworthy witness. She
negates the version of the accused that he went to the SASSA office looking for
the deceased. Bamphitile’s evidence on its own is not sufficient to secure a
conviction, but it adds weight to the evidence led in its entirety and it should not
be assessed in isolation.

[102] Moving to the Section 115 statement of the deceased, the evidence of
Bamphitile plays a significant role in this matter . It was put to the aforesaid
witness by the accused’s legal practi tioner that it was his instructions that the
said witness was one of the two individuals in the Section 115 statement who
the accused had asked if they had not seen a woman . Bamphitile stood her
ground by testifying that the accused had asked her if she and her boyfriend

ground by testifying that the accused had asked her if she and her boyfriend
were queuing for SASSA and not if they had seen the accused’s girlfriend . The

witness was consistent in her testimony and I find her to be a credible witness .
Bamphitile negates the version of the accused regarding the fact that he was
looking for his girlfriend . The accused led no credible evidence to rebut the
version of the aforesaid witness. The defence argued that Bamphitile is a single
witness. Her evidence should not be cons idered in isolation, but in tandem with
the other witnesses. There were no contradictions and improbabilities in her
evidence.

[103] Furthermore, the version of the accused lends itself to various improbabilities .
The accused’s version is that he had found th e deceased in the veld being
assaulted. No details are provided as to whether the accused had asked the
deceased who had assaulted her. Any reasonable person who stumbles upon
a loved one in distress would have asked, “who did this to you?”. This conduct
is not consistent with that of a reasonable man, and it is accordingly found to be
improbable.

[104] The said version of the accused is silent as to whether the assault on the
deceased by whosoever was reported to the police at all . Surely, an assault
should be reported to the authorities without delay so that the perpetrators can
be brought to book . This conduct too is highly improbable, especially if the
person who assaulted is still at large, and also if you were not to blame for the
assault.

[105] In addition, by the accused’s own admission he had to carry the deceased at
some stage and even dried blood from her body with a warm cloth . Having
regard to the extent of the injuries suffered by the deceased which injuries were
described as severe b y the pathologist, one would have expected the
reasonable man to have rushed to the nearest medical facility for assistance .
Alternatively, the reasonable man would have asked for assistance from his
neighbours especially because he was not the cause of the injuries according to
him. The accused is silent as to why medical assistance was not sough t when

his partner was clearly in distress and discomfort. The fact that the accused
portrays himself as a caring partner who got up at night as a concerned par tner
to look for her when she was not in her bed made his conduct for not seeking
medical help even more improbable.

[106] The accused elected not to explain what happened to the deceased that fateful
night even though the uncontested evidence is that the accus ed was the last
person who had seen the deceased alive and before her death , and also after
her lifeless body was found lying next to the accused in his bed. In essence,
the deceased died in the presence of the accused from unnatural causes.

[107] What this Court considered was what a reasonable man or partner would have
done when he comes across his loved one who had been assaulted so viciously
that it left her frail in the middle of the veld that she could barely walk and
navigate herself back to her h ome, who had sustained multiple point abrasions
across the front of the forehead, who would in all likelihood have had difficulty in
breathing or shortness of breath because of a partially collapsed left lung , who
were in considerable discomfort, having suffered 10 fractured ribs, had blood
escaping f rom her body, who had to be carried home and obviously
experiencing excruciating pain. Having come to his loved one’s rescue
according to the accused, he does nothing to rescue her but to wipe the blood
with a warm cloth. The reasonable man would have either rushed his loved one
to the nearest medical facility or called for help in the community, and would
also have reported the unnatural event to the police. The accused did neither.

[108] I am mindful in light of S v V 2000(1) SACR 453 (SCA) at 455 B that an
accused’s version cannot be rejected only on the basis of being improbable, but
only once the trial court has found, on credible evidence, that the explanation is
false beyond reasonable doubt.

[109] The conduct of the accused as alluded to above and in terms of his Section 115
statement are not consistent with that of a reasonable man and is highly
improbable. The various pieces of evidence called for an explanation from the
accused. The accused has a right to remain silent as enshrined in the
Constitution of the Republic of South Africa, Act 108 of 1996, but that right has
to be exercised conscious of the consequences thereof.

[110] The evidence in its totality invites this Court to draw an inference from the facts
presented at the trial . The two cardinal orders for the drawing of inferences as
set out in our jurisprudence and more particularly in R v Blom 1939 AD 188 are
as follows:

“(a) The inference sought to be drawn must be consistent with all the proven
facts.

(b) The proven facts should be such that they exclude any reasonable
inference from them save for the one sought to be drawn . If they do not
exclude other reasonable inferences, then there must be doubt whether
the inference to be drawn is correct.”

[111] The only reasonable inference this Court can draw from the facts in its totality,
which includes the improbable and illogical version of the accused, is that the
accused was the person who inflicted the serious injuries on the deceased
which caused he r death. The inference is irresistible that the accused
intentionally and unlawfully killed M[...] N[...]. The facts proven, including the
highly improbable version of the accused excluded any other hypothesis. The
version of the accused is rejected on the strength of the State’s case, and I also
find it to be so improbable that it cannot be reasonably possibly true.

[112] I have accordingly concluded that the evidence led is sufficient to prove the guilt
of the acc used beyond reasonable doubt. The amount of force inflicted, the

totality of the injuries, the fact that alcohol played a minimal role in the incident,
and the accused’s failure to seek medical intervention have resulted in this
Court finding that the accused acted with dolus directus.

[113] I am also satisfied that the death of the victim resulted from physical abuse as
contemplated in paragraphs (a) and (b) of the definition of “domestic violence”
in Section 1 of the DOMESTIC VIOLENCE ACT 116 of 1998 by the a ccused
who was in a domestic relationship as defined in Section 1 of the aforesaid Act
with the victim . To this end, the accused and the deceased lived together in a
relationship in the nature of the marriage, although they were not, they are the
parents of a child or they are persons in a close relationship that share or
shared the same residence.

[114] I have adopted a holistic approach in evaluating the evidence. I have weighed
up all the elements which points towards the guilt of the accused against all
those which could be indicative of his innocence, taking proper account of the
inherent strengths and weaknesses, probabilities and improbabilities on both
sides, and having done so, I have found that the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about the accused’s
guilt.3

ORDER:

[115] I therefore make the following order:

A. THE ACCUSED IS FOUND GUILTY ON THE CHARGE OF MURDER,
READ WITH SECTION 51(1) OF ACT 105 OF 1997, AS AMENDED.

B. THE REGISTRAR IS DIRECTED TO PROVIDE A COPY OF THIS
JUDGMENT TO THE HEAD OF THE FORENSIC SCIENCE

3 S v Chabalala2003 (1) SACR 134 (SCA) para 15

LABORATORY IN PRETORIA TO CONSIDER THE TAKING OF
POSSIBLE DISCIPLINARY STEPS AGAINST WARRANT OFFICER
EMMANUEL PHIWAMANDLA GWALA , OR ANY OTHER OFFICIAL
RESPONSIBLE FOR FAILING TO PRESERVE AND TO KEEP THE
EVIDENCE IN A SEALED EVIDENCE BAG WITH REFERENCE
PA5500042662 SAFE.

C. THE REGISTRAR IS ALSO DIRECTED TO PROVIDE A COPY OF
THIS JUDGMENT TO THE HEAD OF THE HARTSWATER LOCAL
CRIMINAL CENTRE (“LCRC”) UNIT TO CONSIDER THE TAKING OF
POSSIBLE DISCIPLINARY STEPS AGAINST SERGEANT
MODISAOTSILE PIET TSHABADIRA , OR ANY OTHER OFFICIAL
RESPONSIBLE FOR FAILING TO EXTRACT SAMPLES FROM A
BLOODSTAINED STONE AND TO DISPATCH IT FOR DNA
ANALYSIS.


______________________________
GROENEWALDT AJ
HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION
KIMBERLEY

APPEARANCES:

For The State: ADV E KRUGER
Instructed By: Office of the Director of Public Prosecutions
Kimberley

For The Accused: MR H STEYNBERG
Instructed By: Legal Aid South Africa, Kimberley