SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case No: A98/2023
In the matter between:
KWANELE CUBA FIRST APPELLANT
SIBUSISO FIHLA SECOND APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Kwanele Cuba & Sibusiso Fihla v s State(Case no
A98/2023)
Coram: Wille, J et O’Brien, AJ
Heard: 6 February 2026
Delivered: 17 February 2026
Summary: Evidence-Circumstantial-Evidence-Assessment - Cumulative effect
of Evidence – Evidence Unassailable – Appeal Dismissed.
ORDER
1. The appeal is dismissed, and the convictions are confirmed.
JUDGMENT
O’Brien, AJ (Wille J concurring):
1. In a home -invasion murder on 6 July 2016, two-armed men entered the
residence of the deceased and his family in Zwelihle, Hermanus. On that
evening, the deceased, his wife, children and grandchildren were in the
comfort and safety of their home, watching a program called Generations
on television. While wa tching the progra m, two men, one tall wearing a
black jacket, the other short wearing a brown jacket, knocked at the front
door. One of the children, AB, who was busy in the kitchen, opened the
door and saw the two men. These men requested to see the decea sed, and
as AB turned around to call the deceased, the two men followed her to the
bedroom.
2. In the bedroom, both men drew firearms, and one pointed it at the
deceased. The occupants were instructed to lie face down on the floor.
The deceased wife was on the bed lying face down.
3. The men demanded the deceased's firearm, which he denied possessing,
even after repeated requests. While responding, the deceased called his
son M, who lived in an attached room. The evidence shows that M found
his father's call unus ual, suggesting that something out of the ordinary
was occurring.
4. As the deceased rose from the bed, the shorter man shot him. He fired a
second shot as the deceased again denied having a firearm. AB pleaded
with the men not to kill her father. A third sho t was fired, and the
deceased fell to the ground.
5. AB was forced to show one of the men the location of the firearm, which
was in a safe in the sitting room. The deceased's wife gave AB the keys,
and AB handed them to one of the men, who opened the safe and took the
firearm, which was in a bag inside the safe.
6. M entered the house, saw the two perpetrators in the bedroom, and left. In
a panic, he asked the next -door neighbour to contact the police. He then
went to the neighbour on the opposite side and saw the two men leaving
the premises. Upon returning home, he found his mother and siblings
distraught over the deceased's death.
7. Unable to console himself or his family, M left and followed the
perpetrators. He went to FM’s house, informed him of the inciden t, and
kept the perpetrators in sight as they entered a white Quantum minibus
taxi.
8. The minibus taxi had an Eastern Cape registration number, and a name
was on the back window. FM saw the White minibus with ‘Fishla Tours’
written on the back windscreen. He confirmed these details and reported
the incident to the police.
9. That evening, Warrant Officer Desville Hurne and Constable Tracy
Stellenberg, stationed at Caledon, were on duty in Botriver when they
received a radio call about a shooting in Hermanus. The y were informed
that a white Quantum minibus taxi with registration FMG was heading
toward Cape Town.
10. Hurne observed the white Quantum with registration FMG on the N2
national road and requested assistance from nearby police stations. At
approximately 20:3 0, the minibus was stopped at the Kromco apple
factory.
11. Hurne approached the minibus taxi, and both the passenger and the driver
exited. They were ordered to lie on the ground. He searched both the
driver and the passenger and found black gloves and a cell phone in the
latter’s jacket pocket.
12. Warrant Officer Hurne inspected the minibus taxi and found two
firearms. These firearms were lying exposed and unconcealed at the
driver’s feet. He also saw a small red box containing ammunition. The
witness found a bla ck 9mm pistol with 12 rounds in the magazine. The
other firearm was a black -and-silver Norinco pistol with eight rounds in
the magazine. He found another cellphone at the armrest on the driver’s
side. He confirmed the registration number as F[...] and the name Fishla
Tours written on the back windscreen. The officers arrested the two
occupants of the vehicle and took them to the Grabouw police station.
13. At the police station, all evidence was sealed in forensic bags in the
presence of the appellants. Both appellants were tested for firearm residue
on their hands.
14. The deceased was murdered in his home that evening. His son followed
the perpetrators as they left and entered a taxi marked Fihla Tours with an
Eastern Cape registration. Police stopped the veh icle around 20:30 and
found two firearms, including the deceased's firearm. The time and
distance between the shooting and the appellants' arrest were minimal.
Except for the question of whether the appellants were present when the
exhibits were sealed and whether the firearms were found in the minibus
driven by them, the facts above are undisputed.
15. The state charged the appellants with murder, the unlawful possession of
firearms and ammunition, the pointing of a firearm (AB being the
complainant) under the Firearms Control Act,60 of 2000 and robbery of
the deceased's firearm. They were charged under the Criminal Law
Amendment Act 105 of 1997, the so -called minimum sentence act. After
a lengthy, protracted trial, both were sentenced to life imprisonment on
the murder charge. The unlawful possession of firearms and ammunition
was taken together for the purposes of sentencing, and the appellants
were sentenced to 10 years' imprisonment. Regarding the pointing of a
firearm, they were sentenced to 6 months ’ imprisonment. On the last
robbery count, they were sentenced to 10 years' imprisonment.
16. Due to the life sentences, the matter proceeded to automatic appeal under
section 309(1) (c) of the Criminal Procedure 51 of 1977.
17. Mr Van der Berg, representing both appell ants (though not at trial),
argued that AB, a teenager at the time, experienced trauma that made her
dock identification unreliable. She described the first appellant as having
a facial scar under his left eye, but the magistrate confirmed there was
none, undermining her identification. The defense contends that the
magistrate failed to exercise the necessary caution in respect of
identification. Additionally, they argue that the cell phone evidence
showing contact between the appellants before the incident was wrongly
accepted.
18. Dock identification is the procedure in which witnesses are asked to point
out the accused while the accused is seated in the dock during trial. While
such identification is admissible, our courts have consistently treated it
with ca ution, recognising that this method is susceptible to error,
especially in situations involving traumatic events or brief encounters.
The prevailing legal standard requires the court to consider the
circumstances under which the witness first observed the accused,
including lighting, the witness's opportunity to observe, duration,
distance, and whether the witness's description of the perpetrator
corresponds to the accused. The courts emphasize the need for attentive,
considered evaluation of identification evidence, recognizing the risk of
honest but mistaken identification. Proper judicial caution demands that
dock identification should be treated with caution.
19. A Court of Appeal is hesitant to interfere with the factual findings of a
lower court unless there was a misdirection regarding the law or the facts.
See Rv Dlumayo 1948 (2) SA 677 (A). The case for standard appellate
review by appellate courts is that they should defer to trial courts on
factual findings unless there is clear error or a misapplication of law. In
this way, R v Dlumayo guides the approach to considering evidence and
decisions by ensuring respect for the trial court’s advantage in assessing
witness demeanour and credibility.
Discussion
20. Circumstantial evidence is not lesser e vidence. In R v De Villiers, the
following was said about circumstantial evidence:
21. As was memorably stated in R v De Villiers regarding the probative value
of circumstantial evidence:
“Not to speak of greater numbers; even two articles of circumstantial ev idence-
though each taken by itself weigh but as a feather – join them together you will
find them pressing on the delinquent with the weight of a millstone….It is of the
utmost importance to bear in mind that, where a number of independent
circumstances point to the same conclusion, the probability of the justness of
that conclusion is not the sum of the simple probabilities of those
circumstances, but is the compound result of them.”
22. When analyzing circumstantial evidence, a court must consider the
totality of the evidence rather than treating each piece in isolation. The
court must determine whether the combined evidence points to the
appellants' innocence or guilt. See: S v Reddy 1996 (2) SA 1 (A).
23. The approach to circumstantial evidence was established i n R v Blom
1939 AD 188 at 202. The two cardinal rules of logic, which must be
considered, are as follows:
First, the inference sought to be drawn must be consistent with all the
proved facts. If it is not, then the inference cannot be drawn. Second, the
proved facts should be such that they exclude every reasonable inference
from them save the one 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.
24. The circumstantial evidence against the appellants is overwhelming. This
case presents circumstances where the circumstantial evidence is
particularly strong.
25. The appellants claim that they met for the first time on the day of the
incident, stating that the first appella nt was driving a minibus taxi and
picked up the second appellant near Hermanus. However, the cell phone
records clearly contradict this version of events. The call data leads to the
following logical conclusion:
26.
a. If two individuals have been in contact over the phone and know each
other's phone numbers before an alleged meeting, they must have known
each other prior to that meeting.
b. The cell phone evidence shows that the appellants communicated with
each other before the day of the incident and h ad prior contact while at
different locations in the Western Cape.
c. Therefore, the appellants' claim that they met for the first time on the day
of the crime is false.
27. This syllogism directly undercuts their narrative and supports the
reliability of the circumstantial evidence presented.
28. After they shot the deceased, both the appellants left the scene in each
other's company, got into a white Quantum minibus taxi with the
registration number F [...]. On the back of that vehicle, the name "Fihla
Tours" was written. That vehicle was stopped opposite the Kromco
factory. In the vehicle, the police found two firearms, one of which
belonged to the deceased. The appellants were arrested at 20:30. After the
arrest, the appellants were taken to Grabouw police st ation, where they
were assessed for gunshot residue on their hands. That test came back as
positive. The appellants’ claim that they were not aware of or handled the
firearms is clearly false. Cartridges found at the murder scene were linked
to a Vektor pistol, which showed that the pistol was used in the killing of
the deceased. In other words, the Vektor firearm discharged bullets at the
murder scene. The timeline between the death of the deceased and the
arrest of the appellants is so close, which indica tes that they were in the
vicinity of where the offences were committed and where they were
arrested.
29. The evidence in the preceding paragraph points to the appellants as the
perpetrators of this heinous deed. The proved facts also show that only
the appell ants could have committed it. Any inference that two other
unknown men committed the offences is excluded by the evidence of M,
who followed the appellants from his home to where the latter drove
away in the minibus taxi in which they were later found. If it were not for
M’s persistent following of the appellants, they might not have been
arrested. In any event, any suggestion that the police planted the firearms
is so untenable that it must be rejected. The offences were clearly planned
in the way they were committed. The appellants knew where the deceased
lived; they approached his house together, insisted on the firearm, and left
the scene in a minibus taxi with an Eastern Cape registration.
30. The criticism by the appellants that the dock identification of them by AB
pales into insignificance, having regard to the totality of the
circumstances. If the appellants' dock identification had been the only
evidence implicating them, it would have been a different matter.
31. Another point taken by the appellants was t hat the learned magistrate
should not have considered the evidence of the bail proceedings. During
those proceedings, the presiding magistrate warned them that they had a
right not to say anything regarding the merits of the case against them.
Notwithstanding that warning, the magistrate went ahead and asked the
first appellant whether he knew the second appellant. The first appellant
answered in the affirmative. During those proceedings, the appellants
were legally represented, and their representatives di d not object to the
magistrates' questioning. Without any objection, those bail proceedings
were admitted into evidence during the trial. The appellants now contend
that their right to a fair trial was infringed; therefore, they should be
acquitted of the offences.
32. The submission is misconceived. Regarding the court's exclusionary
discretion, section 35(5) of the Constitution determines:
“Evidence obtained in a manner that violates any right in the Bill of
Rights must be excluded if the admission of that ev idence would render
the trial unfair or otherwise be detrimental to the administration of
justice.”
33. In S v Van Deventer 2012 (2) SACR 263 at para 59, the court said:
“… This principle is that, if the evidence would in any event have been discovered by law ful
means, the exclusion thereof would generally be detrimental to the administration of justice.”
34. During the bail proceedings, the magistrate asked the first appellant whether he knew
the second appellant. The second appellant answered in the affirmative. This
contradicts the evidence that they do not know each other. However, that evidence is
false, h aving regard to the overwhelming circumstantial evidence which implicates
the appellants. Having regard to the no -difference principle, the evidence would in
any event have been admissible given the fact that both appellants were legally
represented during the bail proceedings. Their legal representatives did not object to
the questioning of the magistrate, nor did they request that the evidence be struck
from the record as unfair, which would be prejudicial to the fair trial. Therefore, it
would not be in the interest of justice to exclude the evidence of the bill proceedings
as it would be detrimental to the administration of justice.
35. In my judgement the court a quo considered all the evidence in finding the appellants
guilty. The learned magistrate did not misdirect herself.
36. I propose that the appeal against the convictions be dismissed.
Order:
I propose that the appeal be dismissed and the convictions be confirmed.
___________________________
O’ BRIEN, AJ
Acting Judge of the High Court of South Africa
Western Cape Division, Cape Town
Wille J (concurring)
I agree, and it is so ordered.
___________________________
WILLE, J
Judge of the High Court of South Africa
Western Cape Division, Cape Town
Appearances
For appellants: Adv Van Der Berg
Instructed by: BEG Attorneys
For respondent: Adv Peter-John Damon
Instructed by: National Prosecuting Authority