IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO)
NOT REPORTABLE
Case no: CC27/2024
In the matter between:
THE STATE
and
KHANYISO GQANGENI Accused
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Govindjee J
[1] Ms Nontutuzelo Mjele, a 78 -year-old female, was murdered in her home
between 17 and 20 September 2022. She died because of multiple injuries sustained
on her body and caused b y a blunt object. The accused pleaded not guilty to
charges of murder, housebreaking with intent to steal and robbery with aggravating
circumstances, alternatively attempted robbery with aggravating circumstances.
The evidence
[2] Ndinakho Mabheqa was called as a s 204 witness for the prosecution.
Mr Mabheqa is 19 years of age and was 16 at the time of the incident. He testified
that the deceased and the accused resided in his locality, and he knew the accused
for approximately three years at the time of the incident. The two smoked tik
together. He met the accused on the afternoon of the day of the incident and agreed
to meeting him late that night. The agreed purpose was to obtain money, and he was
aware that the deceased lived alone.
[3] The two met at a rock situated near the home of the deceased. Upon arrival,
the accused pointed towards the bathroom window at the back of the house and
indicated that this would be the point of entry, adding that there was money inside
the home. The accused entered first by p ushing open the window, which was closed
but not locked. He stayed inside for some time and then returned to Mr Mabheqa
and advised him that he could enter. Two passages ran from the bathroom door
which was the point of entry. One passage proceeded straight from the door towards
the lounge and the front of the house. The other ran perpendicular and to the left
towards the deceased’s bedroom. Having entered, Mr Mabheqa proceeded towards
the lounge. The light was on in that room while the passage running towa rds the
deceased’s bedroom was in darkness. From the lounge, Mr Mabheqa realised that a
light had been turned on in the vicinity of the passage running towards the
deceased’s bedroom. He peaked around the corner of the wall separating the two
passages and observed the accused exiting a room. A light was now shining from
that room. The accused attempted to open the door of a room on the opposite side
of the passage but realised it was locked. He informed Mr Mabheqa that he was
looking for money and proceeded in the direction of the deceased’s room, at the end
of the passage.
[4] The accused informed Mr Mabheqa that he had not found the money and
of the passage.
[4] The accused informed Mr Mabheqa that he had not found the money and
speculated that it might be inside the locked room. From the lounge, Mr Mabheqa
heard the opening of drawers and the sound of keys, seemingly emanating from the
unlocked room. Standing near the bathroom door, he observed the accused
unsuccessfully attempt to open the locked door with the set of keys, before returning
the keys to the unlocked room. Mr Mabheqa had retreate d towards the passage
leading to the lounge. He heard and then saw the accused kicking the locked door
repeatedly until it opened, before entering that room. Once again peeping around the
wall at the corner of the two passages, he observed the door at the end of the
passage opening and retreated towards the lounge as the deceased was emerging
into the passage.
[5] Mr Mabheqa heard a sound and, returning to the passage leading to the
deceased’s bedroom, observed the deceased lying on her front or face down. He
observed an iron rod on the floor and told the accused that they should leave. The
accused refused and indicated that the deceased would report the incident. Still
standing in the passage, Mr Mabheqa observed the accused return to the
deceased’s bedroom and, through the open bedroom door, observed him remove a
brick that was being used to support the bed. The accused dropped the brick onto
the back of the deceased’s head, causing her to bleed. This occurred in the passage
running between the bathroom and the deceased’s bedroom. Mr Mabheqa again told
the accused that they should leave. He refused to do so. Mr Mabheqa subsequently
realised that the deceased was not moving. The accused instructed him to take the
brick to a flat situated close to the property’s front gate, inside the yard, which he did.
When he returned to the house he observed the accused carrying a so -called ‘cheap
phone’, which he assumed belonged to the deceased and had been found in the
house. He did not know the accused to have this kind o f phone. The accused
suggested that they dispose of the body. Mr Mabheqa refused and left through the
front door.
[6] Mr Mabheqa reported the incident to his football coach a week after the
incident and subsequently made a statement to Sergeant Ngesi. During his
testimony, he repeatedly explained the sequence of events inside the home,
including the way he deduced that the accused had obtained the bunch of keys from
including the way he deduced that the accused had obtained the bunch of keys from
the drawer inside the unlocked room. He testified that the accused had likely
obtained the iron rod from the locked room, as it was not in his possession when he
had kicked open the door. He was uncertain about the dimensions of the iron rod,
suggesting that it was approximately 60 centimetres in length. He had not handled
the iron rod as the accus ed had not instructed him to dispose of it together with the
brick. On his version of events, the deceased had been struck on the back of her
head and had fallen onto her front before being hit with the brick at the back of the
head.
[7] Mr Mabheqa conceded that the accused was his senior. He understood that
the purpose of the meeting with the accused outside the deceased’s residence to be
for illicit gain through theft, the money to be used ‘so we can smoke’. Although the
two smoked together, they were not f riends. He admitted that his home was closer,
compared to that of the accused, to the deceased’s home. He denied being a
seasoned housebreaker, together with his friends, or that he was falsely implicating
the accused. Various discrepancies in his evidence are dealt with in the analysis to
follow.
[8] The deceased’s body was discovered by Ms Funeka Ngokro on the morning
of 20 September 2022. As depicted in photographs accepted into evidence, the
upper body was in the passage of the home, and the lower body ins ide a room. Ms
Ngokro testified that this room was a short distance away from the deceased’s
bedroom, on the left side of the passage as one proceeded from the bathroom to the
bedroom.
[9] Mr Melikhaya Dwanya testified that the deceased had been killed in his home.
She had lived in the home and looked after it. He had arrived on the scene sometime
after the body had been discovered by Ms Ngokro, and confirmed her description of
where the body lay. He recalled that the doorframe opposite where the body lay had
been damaged through force.
[10] Mr Dwanya testified that a functional camera had been installed to cover the
front area of the premises. He had made a disk available to the police but was
informed that any data captured was unreadable. This was confirmed by Warrant
Officer Ndumiso, an officer attached to the crime scene management unit in Bhisho,
who had taken the memory card away from the scene to download its contents. The
card did not co ntain any images captured by camera and had likely not been
installed correctly at the home.
[11] Mr Dwanya also testified that, at the time of her death, the deceased had
possessed a basic black cell phone, not a smart phone, which had been purchased
by his sister for her. To his knowledge, this item had not been found on the day the
body was discovered.
[12] Mr Mcebisi Mkuhlu, a retired officer employed by the police at the time of the
incident, had attended the scene and observed the damaged door. He confirmed the
placement of the body described above and had observed that the bathroom window
was open. No murder weapon had been discovered, although an item that appeared
to be a handle of a frying pan had raised some suspicion.
[13] Sergeant Ngesi, a detective emplo yed by the South African Police Service,
was the investigating officer. He confirmed that the bathroom window had been
observed as open when he attended the scene on 20 September 2022. He testified
that he had received a call from Mr Gowana, the erstwhile coach of Mr Mabheqa. Mr
Mabheqa had told Mr Gowana that he had been present at the time the deceased
was killed.
Mr Gowana later deposed to a statement to this effect. Sergeant Ngesi then met with
Mr Mabheqa on 27 October 2022, interviewed him and took a statement from him in
the presence of Mr Mabheqa’s mother. Considering the statement, Sergeant Ngesi
had requested the fingerprint task team to locate the brick described, which was
subsequently recovered from the flat in the yard outside the home where th e
deceased resided.
[14] The brick, which was recovered on 4 November 2022, was described as an
‘M6’ brick that was used to build a house and taken as an exhibit. No results had
been received following an attempt to match a swab of the brick with the blood of the
deceased. Warrant Officer Ndumiso confirmed that none of the fingerprints, lifted
mainly on the passage wall at the scene, matched that of the accused. His evidence
revealed that the front door had been open when he arrived at the scene and, absent
revealed that the front door had been open when he arrived at the scene and, absent
any sign of forced entry elsewhere, he had applied powder to obtain fingerprints from
the front door towards the body of the deceased. He had not been made aware of
the possible entry through the bathroom and had therefore not applied any powder to
that window.
[15] Mr Zolani Pantsi repaired phones for resale in his area. He knew the accused
for more than five years through the accused’s elder brother and regarded him as a
younger brother. The two would meet in town and smoke together and he knew that
the accused worked in construction and brickmaking. Sergeant Ngesi testified that
he worked in the area and had seen Mr Pantsi and the accused smoking together
and often in each other’s company. He testified that he had provided a smart mobile
phone to the accused d uring a time when they had smoked together. In return, the
accused had indicated that he would bring him a cheap phone, which he did within a
week, commenting that the phone had previously belonged to his mother, who now
had a new phone. That phone, descr ibed as a cheap ‘ITel’ black phone with a red
battery, had subsequently become mislaid. Two to three weeks later, the police
enquired about this phone and were informed that it was no longer in Mr Pantsi’s
possession.
Mr Pantsi, who had subsequently made a statement to the police, testified that the
cheap phone had been brought to him by the accused five days after the deceased’s
passing. It was put to him that he would borrow the accused’s smart phone from time
to time to listen to music. He agreed but in dicated that the accused subsequently did
not have that cell phone and had requested him to arrange a phone that could
access Facebook.
[16] Mr Pantsi’s testimony deviated in two respects with the statement he had
made to the police. That statement omitted re ference to both ‘ITel’ and the red
battery. The witness was adamant that he had communicated this to the police, while
Sergeant Ngesi maintained that this information had not been told to him.
[17] Dr Domonic John performed a medio -legal post-mortem examination on the
body of the deceased on 22 September 2022. The report was accepted into
evidence in all respects by agreement and Dr John testified via video -link as to its
evidence in all respects by agreement and Dr John testified via video -link as to its
contents. The chief post -mortem findings reflect multiple external injuries, fractured
skull, ribs and spinal column, intercranial bleeding and spinal canal bleeding so that
death was described as having been caused by ‘multiple injuries’. Most of the
injuries observed were around the skull, particularly in the left temporal area, above
the lef t ear, and base of the skull, but the second to sixth right side ribs had also
been fractured along with the spinal column. Dr John explained that while it had
been fair to describe all the injuries collectively as the cause of death, the head
injuries were themselves sufficient to have caused death in the ordinary course of
nature. All the injuries had likely been caused by heavy, blunt objects, such as a
stone, applied with severe force sufficient to cause a fracture across the base of the
skull, or through forceful kicking with a booted foot. By time the body was examined,
it had shown signs of decomposition.
[18] The accused, aged 26, admitted knowing Mr Mabheqa and Mr Pantsi but
denied seeing Mr Mabheqa at all on the day of the incident, or any other
involvement. On his version, the entire testimony of Mr Mabheqa had been
fabricated. Mr Mabheqa was seven years his junior and he considered him to be a
child from the village who had grown up in front of him, rather than a friend. He knew
the deceased as a res ident of Thorn Park. Whereas he lived approximately 500
metres away from the deceased’s residence, Mr Mabheqa lived only a few doors
away from that residence.
[19] The accused, who had passed grade 11, had worked for a company making
lintels for almost two years at the time of the incident. During cross -examination, he
testified that he had been at home throughout between 17 and 20 September 2022.
This, he stated initially, was because it had been raining the whole weekend. He had
not worked because of the rain. Later, he explained that he had not worked because
no orders had been received by the business and he had been called and informed
not to attend. Initially, h e testified that a male supervisor had called him on the
Sunday evening, later indicating that Ms Bobo, the company head, had contacted
him. Asked again where he had been on 17 September 2022, the accused indicated
that he was ‘at home’. He had planned to visit the tavern but, since it was raining, he
had stayed at home and went to bed until the following morning. Asked where he
had stayed at home and went to bed until the following morning. Asked where he
had been during the day, he testified that he had watched a series at the home of his
neighbour, Hlumelo, between 11h00 and 18h00. Initially he was uncertain as to what
time he had arrived or departed from the neighbour’s premises. He also testified that
he had remained at home between 18 and 20 September, sleeping alone in his own
rondavel at night, but had also been with Hlumelo an d at his family’s ‘main house’
during parts of the days. He also mentioned that he had heard from people in the
village that something had happened to the deceased on 20 September 2022, and
observed police and people from the forensic unit in the yard of t he deceased’s
residence. He had been passing by with one or more persons and did not enter the
yard.
[20] The accused could not explain why his version of being with Hlumelo during
most of 17 September 2022 had not been put to Mr Mabheqa, who had testified at
some length to meeting him at a shop during the early afternoon of that day.
Mr Mabheqa’s testimony, during cross -examination, included the statement that the
accused had entered the shop, bought cigarettes and approached him. The accused
explained, during his testimony, that he purchased his cigarettes from a shop closer
to his home, rather than the shop described by Mr Mabheqa.
Analysis
[21] Section 208 of the Criminal Procedure Act, 1977, provides that an accused
may be convicted of any offence on the single evidence of any competent witness. In
this case, Mr Mabheqa, the single witness, was an accomplice only in respect of the
alleged houseb reaking with intent to steal and, on his own version, an accessory
after the fact in respect of the alleged murder, hiding the brick after it was used. He
was also a child, albeit aged 16, at the time the incident occurred. His evidence
must, for all these reasons, be treated with caution in assessing whether the state
has proved its case. As to the testimony of an accomplice, this court recognises that
additional scrutiny is warranted for the reasons described in S v Hlapezula and
Others,1 and that the pr actice requires ‘the safeguard of some factor reducing the
risk of a wrong conviction, such as corroboration implicating the accused in the
commission of the offence, or the absence of gainsaying evidence from him, or his
mendacity as a witness…’. It must also be noted that satisfaction of the cautionary
rule does not necessarily warrant a conviction, given that the ultimate requirement
rule does not necessarily warrant a conviction, given that the ultimate requirement
remains proof beyond a reasonable doubt. This depends upon an appraisal of all the
evidence and the degree of the safeguard.2
1 S v Hlapezula and Others 1965 (4) SA 439 (A) at 440D–G.
2 Ibid at 440H.
[22] The approach to the evidence of a single witness was considered in S v Sauls
and Others:3
‘There is no rule of thumb test or formula to apply when it comes to a consideration of the
credibility of the single witness … The trial judge will weigh his evidence, will consider its
merits and demerits and, having done so, will decide whether it is trustworthy and whether,
despite the fact that there are shortcomings or defects or contradictions in the testimony, he
is satisfied that the truth has been told . The cautionary rule referred to by De Villiers JP in
1932 may be a guide to a right decision but it does not mean “that the appeal must succeed
if any criticism, however slender, of the witnesses’ evidence were well founded”.’
[23] Bearing these cautions in mind, I found Mr Mabheqa to be a good witness
who testified in a forthright manner about the events of 17 September 2022. His
explanations during cross -examination were convincing and he had no hesitation in
offering honest responses even to questions that implicated him and demonstrated
his intention to commit theft that night. On occasion his testimony included his own
deductions based on inferences properly drawn at the time of the incident. It must be
accepted that he had reported the matter to his foot ball coach within a week of his
own accord and without anything to gain from doing so. He consistently implicated
the accused since that time, without any motive to have done so falsely. His
evidence as to what he observed was confirmed in two important re spects: firstly, in
respect of the nature of the deceased’s injuries and the use of an iron bar and brick
as their cause, which found support in Dr John’s testimony; and secondly, in respect
of where he had placed the brick, which was discovered by the pol ice in the place
described by Mr Mabheqa, as confirmed by Sergeant Ngesi.
[24] This is not to suggest that Mr Mabheqa’s evidence was without blemish. He
[24] This is not to suggest that Mr Mabheqa’s evidence was without blemish. He
omitted to explain during examination -in-chief that he had met the accused at the
shop on the afternoon of the incident. While the accused had said that they would
meet ‘in time’, he had testified that he had been told they would meet ‘late’, which he
understood to be between 22h00 and 23h00. There was some vacillation in his
testimony in respect of the arrang ed time for the meeting and minor discrepancies
with the statement he had made to the police approximately a month after the
incident, particularly as to whether he had waited for the accused at the agreed spot
3 S v Sauls and Others [1981] 4 All SA 182 (A) 185–187; 1981 (3) SA 173 (A) at 179G–180G.
or vice versa. Mr Mabheqa testified that he had not asked the accused about the cell
phone which he saw in his possession. During cross -examination, however, he
indicated that he had asked the accused about this.
[25] Courts must be alive to the reasons for contradictions between witness
testimony and their statements. The mere fact that there are contradictions does not
mean that the witness is not credible. To quote S v Mafaladiso and Others:4
‘The mere fact that there are self -contradictions, calls for a circumspect approach by the
Court. Firstly, i t must be carefully determined what the witness intended to say on each
occasion … the judge of fact must take into account that a previous statement is not
obtained by way of cross -examination, that there may be language and cultural differences
between t he witness and the author of the statement which stand in the way of correctly
recording what was intended, and that a deponent is seldom if ever asked by a police official
to explain his statement in detail … Secondly, it must be borne in mind that it is not every
error and not every contradiction or deviation that adversely affects a witness’ credibility …
Non-substantial variations are not necessarily relevant … Thirdly, the contradictory versions
must still be considered and evaluated in the context of all the evidence … the relationship
between the contradictions and the rest of the witness’ evidence, inter alia, must be taken
into account and assessed …’
[26] On my assessment, the deficiencies in Mr Mabheqa’s testimony were non -
substantial and of the kind to be expected given his age at the time of the incident,
the circumstances of the scene he observed, the passage of time that elapsed prior
to his testimony and, in respect of the statement made to the police, the nature of
that process, as described abov e. His testimony stood up well to cross -examination.
The errors, taken cumulatively, were not of the sort to warrant an adverse
The errors, taken cumulatively, were not of the sort to warrant an adverse
assessment of his credibility, which, as indicated, was readily apparent during his
testimony. Having considered its merits and demerits, including the few
contradictions that have been noted, I am satisfied that the evidence was trustworthy
and that the truth was told.
4 S v Mafaladiso and Others 2003 (1) SACR 583 (SCA) at 593 e–594h, as translated by BR
Southwood Essential Judicial Reasoning (LexisNexis) (2015) at 77–78.
[27] By contrast, the accused was a poor witness who altered his version as the
trial proceeded. By way of example, it was put on his behalf that he would say that
Mr Mabheqa was a ‘seasoned housebreaker’ who was testifying in a manner to
protect his friends and that, at all material times, he had been in possession of a
smart phone. Such evidence never materialised. H e maintained, improbably, that he
was able to recall the details of his movements over a specific four -day period three
years ago, but not the date of his arrest. His description of his movements on those
four days varied as his evidence proceeded, as did his explanation for why he had
not been at work at the time, including the identity of the company individual that had
contacted him. His explanation that he was at home for most of the time between 17
and 20 September 2022 was gainsaid by his own testimon y that he had walked past
the deceased’s residence, approximately 500 metres away, on the day the body was
discovered. When it was noted that he had used the nickname ‘Nakho’ during his
evidence, suggesting familiarity with Mr Mabheqa, he improbably sugges ted that he
did not know Mr Mabheqa’s full name, despite the repeated reference to ‘Ndinakho’
during the proceedings.
[28] More importantly, the time allegedly spent with Hlumelo, during the day of the
murder, and the fact that he would not have shopped for ci garettes at the place
mentioned by Mr Mabheqa because of its distance from his home, was mentioned
for the first time during his cross -examination. That version of events was an
afterthought and must be rejected. Given Mr Mabheqa’s testimony regarding his
meeting with the accused during the early afternoon of that day, this would have
been crucial evidence in support of the accused’s defence, rather than a matter
raised for the first time during cross -examination. It is accepted that there is no onus
on an accused to prove an alibi. But the alibi must be considered against the
on an accused to prove an alibi. But the alibi must be considered against the
backdrop of all the evidence, including the court’s impressions of all the witnesses.
Considered as such, that version, along with the accused’s claim that he was alone
at home that ev ening, and denial of any involvement in committing the offences, is
inherently improbable and is held to be not reasonably possibly true in substance. 5
The absence of gainsaying evidence on the part of the accused, and his mendacity,
5 R v Hlongwane [1959] 3 All SA 308 (A) at 311–312; 1959 (3) SA 337 (A) at 340H–341B.
constitutes an adequa te safeguard against the inherent risks in accepting the
evidence of Mr Mabheqa.
[29] For all these reasons, it is Mr Mabheqa’s version of events as to the
circumstances resulting in the deceased’s murder, and the identity of the perpetrator,
that is accepted. The accused was known to the deceased and, despite the
suggestion that they leave, decided to fetch the brick and drop it on the back of the
deceased’s head, with the direct intention to kill her to avoid any possibility of
recognition. It may be added, for the sake of completeness, that the court accepts
that the accused and Mr Mabheqa were well -acquainted and smoked together, so
that there is no issue of identification to be considered. I also accept that it was the
accused, an adult Mr Mabheqa’ s senior by seven years, that took the lead in
breaking into the home before Mr Mabheqa entered. As for the missing iron bar,
there could be various explanations as to why it was not discovered by the police. It
was, the evidence shows, not on the scene at the time the body was discovered. I
accept Mr Mabheqa’s testimony that he observed the iron bar in the passage, that
the accused had thrown it down after it had been used to strike the deceased and
that Mr Mabheqa had no reason to pay further attention to it, having been instructed
only to hide the brick. There are also various possibilities as to why Mr Mabheqa
failed to observe or note the injuries on the torso described by Dr John, bearing in
mind that he left the premises before the accused. The uncert ainty as to the exact
cause of these injuries do not alter the overall outcome.
[30] The result is that the state has proved beyond reasonable doubt that the
accused, acting individually, unlawfully and intentionally killed the deceased by
hitting her with an iron rod and a brick, as charged. The state has also proved the
charge of housebreaking with intent to steal.
[31] Aggravating circumstances in relation to robbery or attempted robbery
[31] Aggravating circumstances in relation to robbery or attempted robbery
includes the infliction of grievous bodily harm by the offender on the occa sion when
the offence is committed, whether before or during or after the commission of the
offence.6 The charge of robbery with aggravating circumstances rests on
6 S 1(1)(b)(ii) of the Criminal Procedure Act, 1977 (Act 51 of 1977).
circumstantial evidence pertaining to the cheap black cell phone allegedly taken from
the home. Where the evidence against an accused is purely circumstantial, before a
court can convict, it must apply the two rules of logic referred to in R v Blom.7 Firstly,
the inference sought to be drawn must be consistent with all the proved facts. If it i s
not the inference cannot be drawn. Secondly, the proved facts should be such that
they exclude every reasonable inference from them save the one sought to be
drawn. If they do not exclude other reasonable inferences, then there must be a
doubt whether the inference sought to be drawn is correct.
[32] On my assessment, the inference sought to be drawn is consistent with all the
proved facts. It is accepted that the deceased had been in possession of a cheap
black phone purchased for her use by Mr Dwanya’s sis ter. Mr Mabheqa, having
removed the brick from the main home, observed the accused with a cheap black
phone in hand. He did not know the accused to have such a phone, which is
consistent with the version put on the accused’s behalf that at no stage did he
possess a cheap phone. That version must be rejected, also considering Mr Pantsi’s
testimony that the accused brought him a cheap black phone a few days after the
incident. Mr Pantsi had no reason to testify falsely in that regard, and that part of his
evidence is accepted irrespective of whether the phone brought to him had a red
battery or not. The accused’s denial that he had obtained a phone from Mr Pantsi, or
provided him with a cheap phone in return, is rejected on the evidence. The result is
that the proved facts are such that they exclude every reasonable inference save the
one sought to be drawn. I am also satisfied that the state has proved the elements of
the crime of robbery with aggravating circumstances. The accused was searching for
money and acting individually at the time he heard the deceased’s footsteps and
money and acting individually at the time he heard the deceased’s footsteps and
struck her with the iron bar. There was a causal link between the assault and the
subsequent taking of the cell phone. The grievous bodily harm was inflicted during
the commission of the offence and before the accused located the deceased’s cheap
black phone and took it, as charged.
Order
[33] I make the following order:
7 R v Blom 1939 AD 188 at 202–203.
1. The accused, Khanyiso Gqangeni, is found guilty on counts 1 (murder), 2
(housebreaking with intent to steal) and 3 (robbery with aggravating
circumstances).
2. The enquiry in terms of s 204(2) of the Criminal Procedure Act, 1977, is
postponed, to be dealt with as part of the sentencing proceedings.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 19-23 May; 7 -9 October 2025
Delivered: 10 October 2025
Appearances:
For the State: Adv N Ngxingwa
Instructed by: Office of the Director of Public Prosecutions
Bhisho
For the accused: Adv AH Giqwa
Instructed by: Legal Aid South Africa
Qonce