IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case No: A199/2025
In the matter between:
LUVUYO PATRICK NDEVU APPELLANT
and
THE STATE RESPONDENT
Neutral citation:
Coram: Fortuin J, Sher J et O’Brien, AJ
Heard: 27 February 2026
Delivery: 16 March 2026
Summary: Evidence-evaluation thereof -court of appeal will not interfere with
factual findings – unless trial court committed a misdirection.
Alibi-no onus on accused to prove alibi -if evidence shows alibi is false -court
entitled to reject it.
ORDER
The appeal against the convictions and sentences is dismissed.
JUDGMENT
O’Brien, AJ (Fortuin, J et Sher, J concurring):
1. The appellant as accused no1 was one of five accused who appeared in the
High Court on charges of robbery with aggravating circumstances, murder,
the unlawful possession of firearms and ammunition. He was convicted of
robbery with aggravating circumstances and murder o n 5 March 2016. On
28 April 2016, the trial court imposed a sentence of 15 years' imprisonment
for the robbery charge and a life sentence for murder in terms of section
51(1) of Act 105 of 1997. Accused no 4 was convicted on the same
offences and was sente nced to 11 years on the robbery count and 2 years
imprisonment on the murder count. The trial court ordered the sentences to
be served concurrently. Strangely , the court a quo did not convict the
appellant and accused no 4 on any of the firearm charges. Accused 2, 3 and
5 were acquitted of all the charges.
2. The appellant sought leave to appeal both his convictions and sentences;
however, the trial court refused the application. On 20 February 2024, the
Supreme Court of Appeal granted the appellant leave to appeal to the Full
Court of this division against both the convictions and sentences.
3. The facts underpinning the appellant's conviction and sentence can be
briefly summarized as follows. On 16 April 2014, the deceased, a police
officer W/O Britz, together with constable Cupido and constable Tyantsi,
were on duty at the Klapmuts police stat ion, Western Cape. Before Cupido
and Tyantsi went out on patrol they had some Coke from a cup which
Tyantsi cleaned by washing it with warm water before use. During the
course of the evening, Cupido and Tyantsi responded to calls while on
patrol, leaving the deceased alone in the police station.
4. A group of men entered the police station, shot the deceased and removed
several firearms and ammunition from a safe located in the charge office.
When Cupido and Tyantsi returned to the charge office sometime later they
found the deceased lying in a pool of blood with a gunshot wound to the
back of his head. Th e post -mortem report indicated he sustained two
gunshot wounds to the occipital region of the skull and an entry and exit
wound on the left hand. A footprint on the back of the deceased's shirt
suggested that he was executed while lying on the ground.
5. Subsequent police investigation of the scene revealed a fresh fin gerprint on
a cup, which was found on a counter next to a half-empty bottle of Coke. It
was the same cup Tyantsi used earlier. A swab was taken from the cup to
collect potential DNA evidence. The fingerprint was identified as
belonging to the appellant. An alysis of the swab revealed DNA material
that was also attributed to the appellant. Although alternative explanations,
such as accidental transfer or contamination, could be raised, these
possibilities were considered and mitigated. The crime scene was sec ured
promptly by first responders, limiting access to the area, and only forensic
personnel were permitted to collect evidence. According to the evidence
presented, standard protocols for the collection and preservation of forensic
evidence were f ollowed. While the defense contended that the fingerprint
was left before the incident and that the cup was handled by others, the
print's freshness and the timing of its identification in a secure environment
strongly support its connection to the offence in question.
6. It is not in dispute that the appellant was a detective at the same police
station. At the time of the incident, the appellant was on sick leave, having
last reported for duty on 28 February 2016. The appellant's sick -leave
certificate indicated he w as officially booked off du ty from 29 February
2016 until 16 April 2016, covering the entire period in question.
Accordingly, he had not been present at the police station for
approximately six weeks.
7. During the trial, the appellant asserted that he was a t home with his brother
at the time of the incident. He did not call his brother as a witness, as his
brother had passed away. The appellant further contended that his
fingerprint on the cup resulted from his use of the cup at the station on 28
February 20 16 and offered the same explanation for the presence of his
DNA in or on the cup.
8. The court a quo rejected the appellant's version and found that the evidence
against him proved his guilt beyond a reasonable doubt.
9. Before this court, the appellant argued that the state failed to prove its case
beyond a reasonable doubt, particularly with respect to the fingerprint and
DNA evidence. The appellant contends that the court a quo failed to
properly evaluate the state's evidence, particularly in light of alleged
contradictions and improbabilities.
10. It is well -established that the state bears the burden of proving the
appellant's guilt beyond a reasonable doubt. There is no onus on the
appellant to prove his alibi. In this regard, R v Hlongwane 1959 (3) SA 337
(A) at 340 H-341A:
‘The legal position with regard to an alibi is that there is no onus on an
accused to establish i t, and if it might reasonably be true, he must be
acquitted. R v Biya 1952 (4)514 (AD) . But it is important to point out that
in applying this test, the alibi does not have to be c onsidered in isolation. I
do not consider that in R v Masemang,1950 (2) S A 488 (AD), Van Den
Heever, JA had this in mind when he said at pp 494 and 495 that the trial
Court had not rejected the accused’s alibi evidence “independently”. In my
view he merely intended to point out that it is wrong for a trial Court to
reason thus: “I believe the Crown witnesses. Ergo, the alibi must be
rejected. See also R v Tusini and Another, 1950 (4) SA 406 (AD) at p 414.
The correct approach is to consider the alibi in the light of the totality of
the evidence in the case , and Greenberg JA said at p.521 “ … If on all the
evidence there is a reasonable pos sibility that this alibi evidence is true it
means that there is the same possibility that he has not committed the crime
‘.
11. In S v Ngcina 2007 (1) SACR 19 (SCA) at para. 18, Navsa JA said:
‘In Hoffman and Zeffert, the South African Law of Evidence (2003), p151,
the learned authors correctly point out that courts occasionally fall into the
error of treating an alibi defense as a separate issue to the issue of
identification. An alibi defense is essentially a denial of the prosecution's
case on the issue of identification.’
12. A Court of Appeal will only interfere with the trial court's factual findings
where there has been a material misdirection by the trial judge or where the
court is convinced that the trial court was clearly wrong. The proper
approach to the evaluation of evidence on appeal was set out in the well -
known case of R v Dhlumayo and Another 1948 (2) SA 677 (A).
13. An alibi defense is essentially a denial of the prosecution’s identification
claim. In this case, the issue is not merely the identification of the
appellant, but whether he was among those who participated in the murder
of the deceased. The appellant contends that he cou ld not have been
present, as he had last been at the station six weeks prior to the incident.
The cup in question is a communal item used by several police officials.
Acceptance of the appellant's version would require the improbable
conclusion that the cu p remained untouched and unwashed by any police
officer for six weeks, a proposition that should be rejected.
14. There is evidence that Constable Tyantsi used the cup that evening and
washed it with warm water. By doing so, she likely removed any other
fingerprints previously present on the cup. Following the incident, the cup
was collected by forensic personnel who were the only individuals granted
access to the scene after it was secured. The cup was then sealed in an
evidence bag, labelled, and stored in a ccordance with chain -of-custody
procedures, ensuring that any risk of contamination or tampering was
minimized. Records documenting each transfer and handling of the cup
were maintained and presented in court, pre -empting challenges regarding
potential con tamination. This careful process supports the conclusion , as
per the evidence of the fingerprint expert who testified, that the fingerprint
found was fresh and properly identified as belonging to the appellant.
Approximately two hours elapsed between the constables' departure from
and return to the police station. During this period, only the appellant could
have touched the cup. Furthermore, there is no evidence that any other
police officers were present at the station immediately before the
deceased's death.
15. Furthermore, the DNA evidence also demonstrates that the appellant was
present at the police station when the offences were committed. It is highly
improbable that the appellant's DNA would have remained in or on the cup
from 28 February 2016 until 16 April 2016. Logical reasoning suggests that
other police officers would have used the cup during the appellant's
absence. Any contrary argument renders the appellant’s version not only
improbable, but so improbable that it is false beyond a reas onable doubt.
See: S v Shackell [2001] 4 ALL SA 279 (SCA).
16. Earlier that evening, the appellant contacted the police station
telephonically to enquire about the whereabouts of one W /O April.
Notably, on the same evening following this call, both the appellant's
fingerprint and DNA were discovered at the scene. The appellant's
explanation for enquiring about April is unconvincing. On another score
the appellant only raised his alib i in his evidence in chief. It was not
mentioned in his bail affidavit nor was it put to the state witnesses. If the
appellant’s alibi was true, one would have expected of him as a detective to
raise this defense at the first opportunity , to show his innoc ence. The
coincidence of the phone call, combined with the fresh forensic evidence,
supports the compelling and only reasonable inference that the court a quo
correctly found the appellant to be one of the perpetrators of these offences.
17. With respect to sentencing, as the trial court was of the view that there were
no substantial and compelling circumstances present, it imposed the
prescribed minimum sentence of 15 years' imprisonment for the robbery
and life imprisonment for the murder. In accordance with the law, the 15 -
year sentence for robbery will run concurrently with the life sentence. The
appellant bears the burden of demonstrating that the sentence that was
imposed is vitiated by some material misdirection by the trial court, such as
to warrant interference by an appellate court. In my view, the appellant
failed to show that there was any misdirection by the trial court, let alone a
material one. The appellant has not advanced any proper, let alone
compelling, reason why the court a quo was entitled to depart from the
prescribed minimum sentences. There are no substantial and compelling
circumstances present which would justify deviating from the prescribed
minimum sentences in this matter. The deceased was a long-serving police
officer who was executed in a brazen and heinous attack on the State,
motivated by the acquisition of firearms. The offences were clearly planned
and executed in a vicious manner. There are no mitigating factors that
outweigh the aggravating circumstances.
In the circumstances, I propose that the appeal against both the conviction s and
sentences be dismissed.
___________________________
O’ BRIEN, AJ
Acting Judge of the High Court of South Africa
Western Cape Division, Cape Town
I agree, and it is so ordered.
___________________________
FORTUIN, J
Judge of the High Court of South Africa
Western Cape Division, Cape Town
I agree.
___________________________
SHER, J
Judge of the High Court of South Africa
Western Cape Division, Cape Town
Appearances
For appellant: Adv Paries
Instructed by: R Davies and Associates
For respondent: Adv Swart
Instructed by: National Prosecuting Authority