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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL DIVISION: MTHATHA
CASE NO.CC16/24
Reportable: Yes /No
In the matter between:
THE STATE
VS
T[...] F[...]
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MJAME AJ
[1] The accused person was in dicted in this Court on a charge of murder read with
the provisions of section 51(1) Act 105 of 1997
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[2] It is alleged that upon or about 09 May 2020 and at or near H[...]”s complex, High
Street in Cofimvaba, the accused did unlawfully and intentionally k ill S[...] M[...] an
adult female person by shooting him with a firearm.
[3] The accused is represented by Mr Modi on private instructions.
[4] Prior to pleading, the accused was apprised of the prescribed minimum sentence
applicable which is lif e imprisonment. The accused was also apprised of competent
verdicts in all counts.
[5] He pleaded not guilty to the charge of murder. He reserved his plea explanation.
Summary of substantial facts.
[6] The summary of substantial facts attached to the indictment and provided to the
accused in terms of section 144(3) (a) of the Criminal Procedure Act 51 of 1977 (the
CPA) read as follows:
“1. The deceased and accused were married, they separated due to personal
conflict.
2. On 9 May 2020, the accused pers on arrived at the workplace of the
deceased and found the deceased inside. He then shot and killed deceased.
3. Accused phoned a certain lady who was working with the deceased in the
office. He informed her that he shot the deceased. During the commission of
the offence the lady who was working with the deceased was not in the office.
4. Accused handed himself over to the police at Cofimvaba Police station. He
arrived at the police station still carrying the fire arm. He reported to the police
that he had shot and killed the deceased. Accused was then arrested.
5. Deceased died on the scene as a result of “multiple gunshot wounds”.
6. Section 51(1) is applicable in that the accused planned or premeditated to
commit this offence.
[7] The evidential material handed in by consent is as follows: -
7.1 Identification of the deceased body - Marked Exhibit “A”
7.2 SAP 13 Register in which the fire arm was recorded -Marked Exhibit “B”
7.3 Notice of rights in terms of the Constitution – Marked Exhibit “C”
7.4 Photo Album which depicts the crime scene – Marked Exhibit “D”
7.5 Ballistic Results - Marked Exhibit “E”
7.6 Primer Residue results – Marked Exhibit “F”
7.7 Blood test results – Marked Exhibit “G”
7.8 Deceased post Mortem report and section 212 (4) affidavit- marked Exhibit
“H” and “I”
7.8 Affidavit of the police officer who dispatched crime scene kit to laboratory –
Marked Exhibit “J”
7.9. Affidavits by Forensic Pathology Officer -Marked Exhibit” K”and L
7.10 Licence of accused to possess firearm – Marked Exhibit ‘M’
Evidence of the state
[8] Luvuyo Hanjana testified under oath that he knows accused person. His wife
was employed by the accused. On 9 may 2020 about 9.00 a.m. accused arrived at
his place looking for his wife. He told him that his wife was not present, she had gone
to Ngcobo to fetch her child. Accused gave him keys to hand them over to his wife.
Accused had blood stains on his track top. He did not ask as to why he had blood
stains. Accused left and he looked like a person who was in a hurry.
[9] Nosiphiwo Hanjana’s testimony is that she is working for the accused and
deceased at H[...]’s place in Cofimvaba. On 9 May 2020 she was not at work. She
had gone to Engcobo to fetch her child. Whilst she was in a taxi she saw the
deceased p assing by driving her motor vehicle. She called and talked to her
requesting her to take care of her clients as she was going to Ngcobo. The deceased
agreed and also informed her that accused was already in the office.
Whilst still on the way she received a phone call from accused who told her that he
had shot and killed deceased because she was cheating on him. She was shocked
and dropped the phone. She later called accused who confirmed that he had killed
the deceased. On coming back from Ngcobo she went to police station where she
found accused. Accused told her that the office keys are with her husband. Accused
also told her not to talk to anyone about the case as he (accused) has not yet made
any statement. Accused also told her to keep safe the money for clients which was in
the office.
[10] ANELE TSHIJILA, a police officer stationed in Cofimvaba testified that on the
date of the alleged incident he was on duty. He received a phone call from Sergeant
Skeyi to urgently come back to the station. He told him that there was someone who
was at the station reporting that he had shot and killed his wife. On arrival he found
the accused who was bleeding and enquired from him as to what had happened. He
told him that he had s hot and killed his wife. He also got injured when he was firing
shots. Accused told him that he fired shots at the deceased because she was
cheating on him and he saw WhatsApp charts on her phone. He and other police
officers proceeded to the crime scene. They found the deceased lying down being
naked on the lower part. The was blood on the floor. There was a navy tight pant,
underwear with sanitary pad next to the deceased. He summoned other stake
holders. He observed injuries on the deceased body. She sus tained three wounds
on the right side of the stomach, two wounds on the left thigh, one wound on right
thigh, one wound below breast. The body of the deceased was taken by forensic to
Queenstown.
They managed to collect evidence. They found 5 empty cartrid ges, 2 projectiles, two
live ammunition. The exhibits were collected by Sergeant Vellem and entered them
in SAP 13 register.
[11] LUNDI SKEYI testified that he was on duty when accused arrived at the police
station driving his car. He was outside when accu sed arrived. Accused came to him
crying and told him that he has shot and killed his wife. He tried to calm him down.
Accused was carrying a firearm. He then requested the accused to hand over the fire
arm to him. He told him that he had an argument with h is wife who was cheating. He
lost control of himself and fired shots at her. The accused was not charged neither a
lost control of himself and fired shots at her. The accused was not charged neither a
suspect when he came to the police station. He spontaneously narrated the story to
him. He and other police officers proceeded to the crime s cene. He then left other
police officers to the police station. He opened a case after he visited the crime
scene.
[12] A[...] O[...] M[...], the brother to the deceased testified that he received a phone
call from his mother that something had happened where the deceased was working.
He drove from Mthatha proceeding to Cofimvaba. On arrival the deceased body was
already taken to mortuary. He identified deceased body. He observed may wounds
on the body of the deceased.
[13] MALIBONGWE NDLWANA, the police officer stationed in Cofimvaba testified
that he was on duty when accused arrived carrying a fire arm. He then called
Sergeant Skeyi who was about to leave the charge office. Sgt Skeyi met with the
accused outside. He calmed down the accused and took the f ire arm from him. On
entering the charge office accused was explaining to Sgt Skeyi that he had shot and
killed his wife. The fire arm was entered in SAP 13 register. A case was opened after
police visited crime scene.
Some of the state witnesses were cross examined by the defence attorney.
Thereafter the state case was closed.
[14] T[...] F[...], the accused testified under oath that deceased was his wife. On the
day before the alleged offence he was from his home at Thornhill. He slept over at
Mahlubini where his wife was staying. On the following day he proceeded to town
where he has a business operating as cash loan. He went there to check books. He
waited for Nosiphiwe who is his employee to arrive. Whilst still there his wife, the
deceased arrived . Deceased told her that Nosiphiwo was not coming to work
because she has a personal problem. Deceased did not stay for long in the office.
She told him that she was going to the bank.
After she left he noticed the window of the vehicle which was driven b y deceased
was opened. The car was parked in front of the office. He went outside to close it. It
transpired that deceased left her cell phone in the car. The phone rang. He did not
answer it. It continued ringing. He took it to the office. He noticed tha t the caller who
answer it. It continued ringing. He took it to the office. He noticed tha t the caller who
was continuously calling was one Iviwe. He suspected that his wife was cheating
with Iviwe. Even before this day his wife was cheating on him and he ended up
leaving his wife. He suspected that his wife had an extra marital affair because her
behaviour had completely changed. He then waited for his wife to come back. When
his wife came back, he confronted her about Iviwe. Deceased told him that it could
be the friend of her child. He then drew out his fire arm threatening the deceased. He
forced her to open her phone pointing the fire arm at her. Deceased opened the
phone. He saw a picture of her wife sleeping with another man. There was also a
message which read “ I miss you my Bhadela I wish I could come to you at
Magwaba. “
He then confronted her about her refusal to have intimate encounter the previous
night. The deceased got into another room and undressed herself showing him that
she was in menstrual cycle. He told deceased to dress up giving her assurance that
he will not shoot her. Deceased jumped at him and they struggle over the fire arm.
Shots were fired during the struggle. He then saw deceased falling down. The fire
arm also fell down. It continued firing shots whist still down. He also got injured on
his little finger.
He realised that deceased has passed on. He then called Nosiphiwo and told her
that he left the keys at her residential place. He proceeded to the police station. On
arrival at the police station he told the police officers that he had shot and killed his
wife.
[15] During cross examination he admitted that his fire arm is a semi-automatic and it
cannot release shots simultaneously without pulling a trigger. He admitted that when
this happened the fire arm was pointed towards the deceased. He admitted that he is
the one who told the police that he had shot deceased. He admitted that it could
happened that he pulled the trigger and fired shots at deceased. He admitted
pointing deceased with a fully loaded and cocked fire arm was unlawful and was
violent by forcing deceased to open her cell phone at gun point. He could not explain
as to how the fire arm which was down could continue firing shots.
ARGUMENTS
[16] The state argued that the accused be found guilty as charged of murder. It has
proved its case beyond reasonable doubt. The accused does not dispute that he
shot the deceased. The accused premeditated the killing of the deceased. The
evidence before court is that the relationship between accused was not good.
evidence before court is that the relationship between accused was not good.
Accused suspected deceased to have extr a marital affairs. The injuries sustained by
the deceased clearly shows that the accused had intentions to kill her. The accused
waited for the deceased to confront her. He drew fire arm forcing the deceased to
open the cell phone. He was violent towards d eceased. The state referred the Court
to a case of Kekana vs S to determine whether the killing of the deceased was
premeditated.
It argued that accused concedes that he was the one who was holding fire arm
pointed towards the deceased. State argued that t he evidence of the accused is full
of improbabilities. It further argued that the injury on accused’s little finger was
caused by his conduct.
[17] Defence argued that the evidence before court is what was said by the accused
to the witness. It argued that the duty is on the state to prove its case beyond
reasonable doubt. There is no evidence that accused planned or premeditated the
shooting of the deceased. Defence referred court to Zikhali vs S 2005 ZA KZN PHC
37 @ paragraph 36, Dhlomo vs S 2023 (1) SACR 314 KZP paragraph 27.
It was further argued that deceased jumped to the accused and they both wrestled
over the fire arm. There was no intention to kill the deceased. The accused drew out
fire arm threatening the deceased which suggests a different scenar io. It was argued
that the accused could not have foreseen that deceased would jump over the fire
arm. It was submitted that accused was negligent by drawing out a cocked fire arm
without putting on a safety pin. The only verdict the court may reach is Cul pable
Homicide.
Onus of proof
[18] The longstanding principle in criminal law and the law of evidence is that the
guilt of the accused must be proved by the State and that the onus rests on the State
to prove the guilt of the accused beyond reasonable dou bt. In S v T 1 the importance
of this principle was stated as follows: -
“The State is required, when it tries a person for allegedly committing an
offence, to prove the guilt of the accused beyond a reasonable doubt. This
high standard of proof – universally required in civilised systems of criminal
justice is a core component of the fundamental right that every person enjoys
under the Constitution.
When a court finds that the guilt of an accused has not been proved beyond
When a court finds that the guilt of an accused has not been proved beyond
reasonable doubt, that accused is entitled to an acquittal, even if there may be
1 2005(2) SACR 318(E)@ paragraph 37
suspicions that he or she was, indeed, the perpetrator of the crime in
question.”
EVALUATION OF THE EVIDENCE
[19] The duty of the Court is to evaluate the evidence in its totality to establish
whether the state has met the required standard of proof.
[20] The principle in evaluating evidence was clearly stated by the Supreme Court of
Appeal in S vs Chabalala 2
“the correct approach in evaluating evidence is to weigh up all elements which
points towards the guilt of the accused against all those which are indicative
of his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities, and having done so, decide
whether the balance weighs so heavily in fav our of the state so as to exclude
any reasonable doubt about the accused guilt. Of course, this cannot be done
in isolation, but the court must consider the totality of the evidence before it to
come to a just decision. It is therefore imperative to evaluate all the evidence
and not to be selective in determining what evidence to consider.”
[21] The Supreme Court of Appeal in S vs Chabalala (supra)amplified as follows,
the “ holistic” approach required by a trial court in examining the evidence on the
question of guilt or innocence of an accused:
4: “court when evaluating the evidence in totality does not have to be
convinced that every detail of an accused’s version is reasonable true in
substance the court must decide the matter on the acceptance of that
version. Of course, it is permissible to test the accused’s version against the
inherent probabilities, but the accused’s version cannot be rejected merely
because it is improbable, it may only be rejected on the basis of inherent
probabilities if it is sai d it is so improbable that it cannot be reasonably
possible true,”
[22] A conspectus of all evidence is required. Evidence that is reliable should be
weighed alongside such evidence as may be found to be false. Independently
weighed alongside such evidence as may be found to be false. Independently
verifiable evidence, if any, sh ould be weighed to see if it supports any evidence
2 2003(1) SACR 134 SCA
tendered. In considering whether evidence is reliable, the quality of that evidence
must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of
course, must be evaluated against th e onus on any particular issue or in respect of
the case in its entirety. See – S vs Trainor 3
[23] It is common cause that the deceased died as a result of multiple gunshot
wounds. It is common cause that deceased and accused were staying together as
husband and wife. It is common cause that the gunshots were fired from the accused
fire am.
The issue in dispute is whether the accused had premeditated and had intentions to
kill of the deceased.
[24] In this case there is no eye witness. The state relied on informal admissions
made by the accused to the witnesses.
The evidence of Nosiphiwo is that the accused telephonically called her and
spontaneously or voluntarily told her that he had shot and killed deceased because
she was cheating.
The evidence of thre e police officers who were at the police station when accused
arrived is consistent with each other that accused voluntarily made informal
admissions that he had shot and killed his wife because she had extra marital affair.
This evidence of informal admis sions was not disputed to the witnesses. This
evidence is also corroborated by the accused who under cross examination admitted
pulling the trigger and fired shots at deceased whilst they were wrestling over the fire
arm. There are improbabilities on the evidence of the accused, for instance the issue
of a semi-automatic fire arm firing shots simultaneously without pressing a trigger. It
is highly improbable a fire arm to fire shots whist lying on the ground without being
handled.
I find that the evidence o f the witnesses is reliable. Their credibility was not shaken
by cross examination.
[25] Informal admissions can be admitted as evidence to prove the truth of their
contents. Informal admissions are governed by section 219 A of the criminal
contents. Informal admissions are governed by section 219 A of the criminal
procedure Act 5 1 of 1977 which ensures that statements made extra -judicially will
3 2003 (1) SACR 35 SCA
be admissible in court if it was made freely and voluntarily. In this matter accused
voluntarily made admissions without being unduly influenced. He also admitted that
he told Nosiphiwo and police officers that he had shot and killed deceased.
Premediated Murder
[26] Premeditation involves a thought process that contemplates a certain outcome
and the means to achieve the outcome. Intention in all forms involves the perpetrator
‘s state of mind before and while the criminal act is being committed.
[27] In S vs Raath 4, the Full Court had to decide on appeal, whether the murder
committed by the accused upon his wife constituted premeditated murder. The
accused was prone to violent and aggressive behaviour towards the deceased and
also abused alcohol. On the night of the incident, the accused had gone out drinking.
the evidence showed that the accused decided that he wanted to kill his wife and
within few minutes carried out the murder. The accused was heavily intoxicated
when he shot his wife. The Court had to decide whe ther the murder was
premeditated or not.
[28] In S vs Makatu5, it was said:
“The concept of a planned or premeditated murder is not statutorily defined.
We were not referred to, and nor was I able to find any authoritative
pronouncement in our case law concerning this concept. By and large it would
seem that the question of whether a murder was planned or premeditated has
been dealt with by the court on a casuistic basis. The Concise Oxford English
Dictionary, 10 th edition, revised, gives the meaning of p remeditated as to
“think out or plan beforehand ‘whilst to plan ‘is given meaning “to decide on,
arrange in advance, prepare for an anticipated event or time “.
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
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 ov er
4 2009(2) SACR 46 (CPD)
5 2006(2) SACR 582 (SCA) at paragraphs 12-14
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 m urder 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, pro vide a ready -
made answer to the question of whether the murder was planned or
premeditated.”
[29] The Supreme Court of Appeal in Kekana vs S 6, held that:
“Premeditation does not necessarily entail that the accused should have
thought or planned his or h er action for a long period of time in advance
before carrying out his or her plan. this is because even few minutes are
enough to carry out a premeditated action”.
[30] In casu, the accused in his evidence told the court that his marriage relationship
with the deceased was not in good state. Deceased had extra marital affairs. This
had been happening for over a long period till such time he decided to leave. On the
date of the incident deceased left him in the office proceeded to the bank. She did
not immediately come back from the bank. Deceased had left her cell phone in the
car. The deceased cell phone continuously rang. He ended up taking it to his office
and waited for deceased. The caller was one Iviwe. The deceased came back and
he confronted her abo ut this Iviwe and ended up drawing out his cocked fire arm
threatening and forced her to open the phone. He was suspicious that the caller was
the person whom she was cheating with.
[31] It is clear from the evidence of the accused that the moment deceased ‘s cell
phone rang he suspected the caller to be deceased ‘s side lover and thought of
confronting the deceased. There is an element of thought. He waited for her to come
confronting the deceased. There is an element of thought. He waited for her to come
and explain to him who was Iviwe. He drew out a cocked fire arm forcing the
deceased to open her cell phone. This confrontation ended up shots being fired at
the deceased which led to her death. If a perpetrator carries through with his plan to
cause another person bodily harm which ultimately results in person’s death where
6 2014 ZASCA 158 @ paragraph 13 (1 October 2014)
the death was foreseen by the perpetrator, premeditated murder is established. The
accused drew out a cocked fire arm, pointed at the deceased. His conduct was
violent and unlawful towards deceased. The injuries sustained by the deceased
clearly shows that the accused had intentions to kill her. The chief post mortem
findings were:
• Multiple gunshot wounds on the skull, neck, chest, abdomen, upper limbs and
lower limbs.
• Subendocardial haemorrhages in left ventricle.
• Creamy discharge on the vagina.
[32] Having evaluated the evidence in its totality I find that the state has proved its
case beyond reasonable doubt. The accused did unlawfully with intent fired shots
and killed the deceased. The court rejects the evidence of the accused as it is not
reasonable possible true.
[33] In the circumstances I found accused guilty as charged of Murder read with the
provisions of section 51(1) Act 105 of 1997.
______________________
P.C.N. MJAME
ACTING JUDGE OF THE HIGH COURT
Appearances:
For State : Mr Qebeyi
Instructed by : NPA
Mthatha
For Accused : Mr Modi
Instructed by : Modi Attorneys DPP’S Office
Queenstown
Dates Heard : 03/09/24,04/09/24; 23/06/25, 24/06/25
Date Delivered : 25 June 25