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[2026] ZANCHC 42
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Freeman v S (CA&R 54/2025) [2026] ZANCHC 42 (13 May 2026)
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THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Not Reportable
Case no: CA&R 54/2025
In
the matter between:
ILSE
ELIZABETH
FREEMAN
Appellant
and
THE
STATE
Respondent
Neutral
citation:
Freeman
v The State
(CA&R 54/2025) 13 May 2026.
Coram:
TLALETSI JP and LEVER J.
Heard:
9 February 2026.
Delivered:
13 May 2026.
Summary:
Criminal Law
– Appeal against conviction –
Murder
read with
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
–
No
material misdirection shown –
No
justification to interfere with the trial court’s findings
–
Appeal dismissed.
ORDER
1.
The appeal against the conviction is
dismissed.
JUDGMENT
Tlaletsi
JP
[1]
The
appellant appeals against her conviction in the regional court
sitting at Postmasburg on a charge of murder, read with the
provisions of
section 51(2)
of the
Criminal Law Amendment Act
[1
]
.
She was sentenced on 10 March 2025 to a term of 7 years’ direct
imprisonment, three years of which were suspended for a
period of
five years. On 28 May 2025, the appellant successfully applied for
leave to appeal only against her conviction. She is
currently out on
bail pending the outcome of the appeal.
[2]
The factual background of the incident that
resulted in the appellant’s conviction is as follows. It is
common cause that
on 24 December 2023, the police received a report
of an incident at Haakbosdraai. Warrant Officer Binang Motlogelwa
(Motlogelwa)
and Constable Thapelo Matong (Matong) attended the
scene. Upon arrival, they found the deceased lying on her bed in a
single-roomed
shack. The attending paramedics certified that she was
deceased.Motlogelwa testified that while at the scene, the appellant
approached
them and stated that she had asked the deceased for a
cigarette, and an argument broke out between them. The appellant then
grabbed
the deceased by her neck, on top of the bed she had been
lying on. She strangled her. When she realised that the deceased was
weakening,
she sent her daughter, who had accompanied her to the
deceased’s shack, to fetch the deceased some water. The
deceased then
became unresponsive. The deceased is the appellant’s
sister-in-law.
[3]
The undisputed Medico-Legal Post-Mortem
examination report prepared by Dr Fernando Torres, who conducted the
post-mortem examination
on the body of the deceased, records the
chief post-mortem findings as “abrasions of 50X20mm in the
right lateral of neck;
Ecchymosis in lids of both eyes; under skin
haemorrhages in muscles of the neck; Infiltrated haemorrhagic in
right common carotid
artery; there are asphyxia stains in the bases
and in the incisions of lungs; the blood is dark and fluid. Cyanosis
in the nails
of fingers”.
The report further
records that the findings above are consistent with an asphyxia
caused by strangulation. The cause of death is
reported as
strangulation and possible homicide.
[4]
The appellant’s daughter (Ms JLMF)
tendered her evidence at the instance of the respondent. Ms JLMF’s
version is that
the appellant called her from a friend’s place
and invited her to accompany her to the deceased’s place to
confront
the latter regarding the rumours she had allegedly spread,
accusing the appellant of stealing her father-in-law’s
mattress.
[5]
They found the deceased lying on her bed.
The appellant and the deceased engaged in a conversation during which
the appellant disclosed
the rumours she had heard. Upon hearing that
her sisters were responsible for the rumours, the deceased shouted.
The appellant
turned towards the door to go and find the sisters. The
deceased, who was still lying on the bed, grabbed a long knife next
to
her. The witness shouted at the appellant to turn around. The
appellant immediately turned towards the deceased, who was standing
beside the bed. She then immediately pinned her down on the bed,
pressing her right knee on the hand holding the knife and strangling
her with the other hand. She strangled her for less than 7-10
seconds. The deceased’s knife fell onto the side of the bed,
and the appellant left and went outside.
[6]
Ms JLMF testified that the deceased
requested her to fetch her some water. She went outside to fetch the
water. The appellant returned
and found the deceased lying on her
side next to the bed. She was unresponsive when she spoke to her. She
turned her and noticed
that some foam was oozing from her mouth.
[7]
The witness testified that she informed the
two police officers who arrived at the scene about the knife that the
deceased was holding,
and that it fell onto the side of the bed. She
testified that none of the police officers bothered to look for the
knife. She also
could not retrieve the knife where it was because she
did not want her fingerprints to be planted on it.
[8]
The
appellant testified in her defence after her application for
discharge under section 174 of the Criminal Procedure Act
[2]
(CPA)
was unsuccessful. She confirmed that, having heard rumours of her
being accused of stealing her father-in-law’s mattress,
she
went to the deceased’s house with her daughter. An argument
broke out over what she told the deceased, who was always
lying on
her bed. The appellant turned towards the door, intending to find
someone who could lend her a phone to call her other
sisters-in-law,
who had made the reports to her. Her daughter warned her to turn
back. As she turned, she saw the deceased standing
at the edge of the
bed, holding a knife. She immediately grabbed the deceased and pushed
her onto the bed. She pressed her knee
against the hand holding the
knife while using her other hand to grip the deceased’s neck.
She struggled physically to disarm
her, telling her to let go of the
knife so that she could leave her. During the struggle, the deceased
mentioned that she was feeling
hot, and the knife fell from her hand.
The appellant stood up and exited the room. The intention was for her
to catch her breath
and later return to the room and continue where
they had left off.
[9]
After a few seconds, her daughter came to
her and reported that the deceased was foaming at the mouth. The
appellant immediately
returned to the room and turned the deceased
onto her side, as she was lying on her back. She then hurried out to
ask the neighbour
for some milk, thinking that the deceased may have
taken too much of her medication. She denied that she had the
intention to kill
the deceased.
[10]
Under cross-examination, the appellant
testified that she could not run away from the deceased when she
first saw her with the knife
because she was frightened. Her attempt
to grab her was because the deceased was busy lifting her hand that
was holding the knife.
She denies having spoken to any of the police
officers that night. She therefore never told the police at any time
about the knife
the deceased had, because they never came to question
her.
[11]
After the close of the defence case, the
trial Magistrate called Goitsemang Nkatsao (Ms Nkatsao) as the
court’s witness. She
is a Municipal Councillor who was called
to the scene for assistance. She is the one who phoned the police to
attend to the scene.
When the police arrived, they asked her what had
happened. She referred them to the appellant, as she only arrived
after the incident
and would not be of assistance. She saw the police
speak to the appellant and then enter the shanty. The police declared
the place
a crime scene and instructed everyone to stay away. She
only noticed that the appellant was shouting when she spoke to the
police.
However, she could not understand what she was saying, as she
was not close to them. She did not see any knife, and no one told
her
about a knife at the scene.
[12]
The second witness called by the trial
Magistrate is Shawn Vivian Graham Jacobs, a warrant officer who
attended the scene on 26
December 2023 to reconstruct the scene. He
photographed the scene as directed by Sergeant Boraki. On 28 December
2023, he photographed
the deceased at Kuruman Forensic Mortuary, as
indicated by Dr Torres. He then compiled an album and prepared a key
to it for a
better understanding of the photographs. He testified
that no one mentioned a knife to him at the scene.
[13]
In the judgment, the trial court recognised
that the appellant’s defence is that she acted in self-defence.
The trial court
found it highly improbable that the deceased had a
knife and rejected this allegation as false. The court was satisfied
that the
respondent had proved the charge against the appellant
beyond a reasonable doubt and found her guilty as charged.
[14]
The grounds of appeal raised by the
appellant are that the trial court misdirected itself by: dismissing
the appellant’s application
for discharge in terms of section
174 of the CPA; admitting the statement made by the appellant to the
two police officers; accepting
the version of the State’s only
eyewitness; and not finding that the appellant’s version is
reasonably possibly true.
[15]
In granting leave to appeal, the trial
court remarked that although the State witness, in the person of the
appellant’s daughter,
amplified the defence case by testifying
that she warned the appellant to turn back when the deceased produced
a knife, which the
trial court rejected, it is possible that another
court might believe her.
[16]
In the heads of argument filed on behalf of
the appellant, considerable time is spent emphasising that what the
appellant is alleged
to have told the two police officers who
attended the scene was an inadmissible confession. The reason for its
inadmissibility
is the contention that the appellant, as a suspect,
was not informed of her rights, particularly the right to remain
silent and
to legal representation before making the alleged
statement to the police.
[17]
It
is a well-known principle that the State bears the burden of proving
the guilt of an accused person beyond a reasonable doubt.
There is no
obligation on the accused to prove their innocence. In
S
v Van Der Meyden
[3]
,
the Court held:
“
.
. . The proper test is that an accused is bound to be convicted if
the evidence establishes his guilt beyond reasonable doubt,
and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored.”
[18]
Regarding
the assessment of evidence in a criminal trial, the Supreme Court of
Appeal (SCA) in
S
v
Chabalala
[4]
held:
“
.
. . The correct approach is to weigh up all the elements which point
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
on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as to exclude any reasonable
doubt
about the appellant’s guilt. The result may prove that one
scrap of evidence or one defect in the case for either party
(such as
the failure to call a material witness concerning an identity parade)
was decisive but that can only be an
ex
post facto
determination and a trial
court (and counsel) should avoid the temptation to latch on to one
(apparently) obvious aspect without
assessing it in the context of
the full picture presented in evidence.”
This approach is
important in this case, given its circumstances.
[19]
The
appellant’s daughter was 17 years old when she testified. She
is the sole eyewitness who was inside the room during the
incident
that resulted in the deceased’s death. Section 208 of the CPA
provides that an accused may be convicted of any offence
based on the
testimony of a single competent witness. A well-established judicial
practice is that the evidence of a single witness
should be
approached with caution, weighing his or her credibility against
factors that may undermine it. In
Haarhoff
and Another v Director of Public Prosecutions
,
Eastern
Cape
[5]
,
the SCA stated the following regarding the proper approach to the
evidence of a child-witness and that of a single witness:
“
It
is settled law that evidence of a child must be approached with
caution. The same principle applies to the evidence of a single
witness. The court has to satisfy itself that the evidence given by
the witness is clear and substantially satisfactory in material
respects. The court is to look for features, in the evidence, which
bear the hallmarks of trustworthiness to substantially reduce
the
risk of wrong reliance upon the evidence of a single witness.”
[20]
In
Makate
v Vodacom Ltd
[6]
,
the Constitutional Court reminds us that:
“
.
. . Ordinarily, appeal courts in our law are reluctant to interfere
with factual findings made by trial courts, more particularly
if the
factual findings depended upon the credibility of the witnesses who
testified at the trial.”
[21]
The
reasoning behind the principle articulated by the Constitutional
Court was aptly outlined in
R
v Dhlumayo and Another
[7]
as follows:
“
3.
The trial Judge has advantages which the appellate court cannot have
in seeing and hearing the witnesses
and in being steeped in the
atmosphere of the trial. Not only has he had the opportunity of
observing their demeanour, but also
their appearance and the whole
personality. This should never be overlooked.
4.
Consequently, the appellate court is very reluctant to upset the
findings of the trial Judge.
5.
The mere fact that the trial judge has not commented on the demeanour
of the witness can hardly
ever place the appeal court in as good a
position as he was.
6.
Even in drawing inferences, the trial Judge may be in a better
position than the appellate court,
in that he may be more able to
estimate what is probable or improbable in relation to the particular
people whom he has observed
at the trial.
. . .
8.
Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion
is correct; the appellate court
will only reverse it where it is convinced that it is wrong.
9.
In such a case, if the appellate court is merely left in doubt as to
the correctness of the conclusion,
then it will uphold it.
10.
There may be misdirection on fact by the trial Judge where the
reasons are either on their face unsatisfactory
or where the record
shows them to be such; there may be such a misdirection also where,
though the reasons as far as they go are
satisfactory, he is shown to
have overlooked other facts or probabilities.”
[22]
I now turn to examine the grounds of appeal
and arguments presented on behalf of the appellant. Since the
appellant disputes having
spoken to the police, the evidence tendered
by the police witnesses is disputed and can only be determined by the
court through
a credibility assessment. Ms JLMF is unhelpful in
answering this question because she did not mention that the
appellant spoke
to the police. However, if it was the appellant’s
version that she never spoke to the police at the scene from the
beginning,
one would have expected the defence to explore this aspect
with Ms JLMF. The respondent was not aware that this would be an
issue,
it only became apparent when Motlogelwa testified about what
the appellant told them, and this was disputed. The appellant’s
version on this aspect is not corroborated. Motlogelwa’s
statement that the appellant spoke to them is supported by Matong
and
Ms Nkatsao, who is an independent witness who would not have known
the significance of this aspect. She testified that she
was the one
who referred the police to the appellant, as she would not have been
able to clarify what happened. The appellant’s
version is
inconsistent; it is unlikely that the police would speak to Ms JLMF
and exclude the elderly people at the scene.
[23]
Regarding the argument that the appellant’s
statement to the police officers who first attended the scene
constitutes an inadmissible
confession, the clear obstacle for the
appellant is that no objection was raised on her behalf when the
evidence was presented
at trial through Motlogelwa and Matong. Even
during the cross-examination of Motlogelwa, nothing was said about
the evidence constituting
a confession that would require a warning
of rights as a suspect. Instead, all that was suggested to Motlogelwa
was that the appellant
never spoke to him at the scene.
[24]
Interestingly, it was never suggested to
Matong that the appellant had not spoken to them. On the contrary, he
was questioned about
the details of what the appellant told them
regarding her physical encounter with the deceased. The purpose of
cross-examination
was authoritatively explained as follows by the
Constitutional Court:
“
The
institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it is
essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’s
attention
to the fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume
that the unchallenged witness’s testimony is accepted as
correct.”
[8]
[25]
When the appellant gave evidence, no issue
was raised about her making an inadmissible confession. She, in fact,
indicated during
cross-examination that she could not have spoken to
the police because she knew that whatever she said would be used
against her
as evidence.
[26]
When
assessing whether the words spoken by the appellant amount to a
confession, a court must examine the content of the statement,
the
circumstances in which it was made, and the necessary implications of
the words.
[9]
This
analysis will help to contextualise the statement correctly and
establish the true meaning of the words used.
[27]
A
confession is defined as an unequivocal admission of all elements of
the offence in question.
[10]
What
the appellant allegedly told the police officers who first attended
the scene does not constitute a confession. According to
Motlogelwa,
the appellant informed him that there was a quarrel between her and
the deceased over a cigarette, and she choked her.
Matong, however,
testified that they were told by the appellant that there was an
argument or fight between her and the deceased,
and that she then
grabbed her and choked her. Reference to having an argument or fight
involving the appellant and the deceased
does not unequivocally mean
that she intentionally and unlawfully killed the deceased. What she
told the police officers is simply
what her daughter testified to and
was hardly in dispute.
[28]
The police officers’ evidence was not
presented to prove a “confession”, but to describe the
scene as they found
it and the leads they gathered there. When the
appellant first spoke to the police officers, they did not know that
she might be
a suspect in the case. It was only after learning of her
connection with the deceased that she became a potential suspect.
[29]
The appellant’s daughter’s
version is that she told the police about the knife that the deceased
had. However, the two
police officers who inspected the scene found
no weapon. They further mentioned that no one told them about the
knife. As police
officers with no interest in the case, they had no
reason to conceal the fact that they were told about the knife.
During the trial, the
appellant’s legal representative never put to the two police
witnesses that her instructions were that
the deceased had a knife.
[30]
The testimony that the daughter and the
appellant informed the police about the knife seems to be improbable
and not consonant with
the admitted facts. The common cause fact is
that from the arrival of the appellant and her daughter, the deceased
was lying on
her bed. When confronted by what was rumoured, she
remained lying on the bed. It is improbable that she shouted at the
appellant
whilst lying on her. That would not make sense.
[31]
The version that the appellant turned away
in the direction of the door, which was one metre away from the end
of the bed on which
the deceased was lying, is also improbable. The
deceased could not have, in a split second, fetched a knife and
raised it with
a view to stabbing the appellant. The appellant’s
turning away from the bed and walking a few steps, and thereafter
returning
to ward off the alleged prospective attack from the armed
deceased as warned by the daughter, is improbable. One metre is too
short
a distance for all these events to have taken place; they would
have had to unfold within a split second, which is unlikely if not
impossible. The trial court cannot be faulted for finding that the
deceased did not produce any knife. The reasonable conclusion
supported by all proven facts is that the deceased never stood up and
was attacked by the appellant whilst lying on her bed. That
is the
position in which the police officers found her. If indeed there was
a knife, the appellant had an opportunity to leave
the room as she
was, in any case, on her way out as she alleged. In their own
version, the appellant and her daughter never testified
that the
deceased charged at the appellant with a knife to stab her. The
appellant was not in danger at the time, so she was not
required to
defend herself.
[32]
When the application for discharge in terms
of section 174 was considered, there was already evidence from the
two police officers
who testified about what the appellant told them.
There was already a post-mortem examination report on the cause of
the deceased’s
death. The appellant’s defence was that
she acted in self-defence. For these reasons, the trial court cannot
be faulted for
exercising its discretion in dismissing the
application for discharge in terms of section 174 of the CPA.
[33]
I am satisfied that the trial court did not
commit any misdirection. There is no justification for this Court to
interfere with
the trial court’s factual findings. The appeal
is without merit and falls to be dismissed.
[34]
In the result the following order is made.
1.
The appeal against the conviction is
dismissed.
LP TLALETSI
JUDGE PRESIDENT
NORTHERN CAPE DIVISION
I concur
LG LEVER
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
Appearances:
For
the Appellant:
Ms April
Instructed
by:
Legal
Aid SA, Kimberley
For
the Respondent:
Adv. Q. Hollander
Instructed
by:
Director
of Public Prosecutions, Kimberley.
[1]
105
of 1997.
[2]
51
of 1977.
[3]
1999
(1) SACR 447
(W) at 449I-450B;
1999
(2) SA 79
(W) at 82C-D; See also
S
v Trainor
2003 (1) SACR 35
(SCA) para 8.
[4]
2003
(1) SACR 134
(SCA) para 15.
[5]
2019
(1) SACR 371
(SCA) para 37.
[6]
2016
(4) SA 121
(CC) para 37.
[7]
1948
(2) 677 (A) at 705-706.
[8]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) para 61.
[9]
R v
Duetsimi
1950 (3) SA 674
(A) at 678-679;
S
v Yende
1987 )3) SA 367 (A) at 374.
[10]
R v
Becker
1929 AD 167
at 171.