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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
DODO LUCAS OLIFANT
And
THE STATE
Coram: Reddy J and Maodi AJ
Considered on the papers: 6 June 2025
Not reportable
Case No: CA 68/2024
Regional Court Case No: RC57/2020
Appellant
Respondent
Delivered: This judgment was electronically circulated to the parties' legal
representatives by e-mail and released on SAFLII. The date and time of hand
down are deemed to be 22 May 2026 at 12h00.
Summary: Criminal appeal - attempted murder - circumstantial evidence -
appellant discovered intimate partner with another man and immediately resorted
to violence - sustained domestic disturbance and threats directed at deceased -
deceased shortly thereafter found in same shack with catastrophic head injuries -
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contradictions in part of witness evidence not fatal where reliable portions
corroborated by objective facts - principles in R v Blom, S v Chabalala and S v
Trainor applied - conviction for attempted murder confirmed and appeal
dismissed- appeal against sentence dismissed.
JUDGMENT
REDDY J
Introduction
[1] This appeal has been part of a special appeals project initiated by the Judge
President of this Division. On 6 June 2025, the appeal was considered on the
papers, and judgment was reserved for Maodi AJ to draft. The judgment was
presented to me on 27 March 2026. After careful reflection on Maodi AJ's
judgment, I drafted a separate judgment for Maodi AJ's consideration , which was
presented to Maodi AJ on 18 May 2026 for his perusal. This is the judgment that
has been agreed upon.
Proceedings in the trial court
[2] The appellant, Mr Dodo Lucas Olifant, appeals his conviction and sentence
in the Regional Court at Wolmaransstad. He was charged with murder read with
section 51(2) of the Criminal Law Amendment Act 105 of 1997 (Count 1) and
assault (Count 2). On 21 February 2024, he pleaded not guilty to both charges.
[3] On 15 August 2024, the trial court found the appellant not guilty of murder
but guilty of the competent verdict of attempted murder on Count 1, and guilty as
charged on Count 2. He was sentenced to ten (10) years' imprisonment on Count
1 and to a fine of Rl 500,00 or five (5) months' imprisonment on Count 2, with
the sentences to run concurrently. He was also declared unfit to possess a firearm.
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[4] The appellant applied for leave to appeal to the court a quo. On 30
September 2024, leave was granted, limited to Count 1 and the corresponding
sentence of ten (10) years' imprisonment. The State does not oppose the appeal
on either conviction or sentence. Moreover, the State has not noted any
cross-appeal against the acquittal on murder or against the conviction of
attempted murder.
The nub of the appeal on conviction
[5] The appeal on conviction turns on whether the State proved beyond
reasonable doubt that the appellant unlawfully assaulted the deceased with the
intention to kill her. The appellant 's challenge pivots on three primary grounds,
namely the reliability of the State's witnesses, the absence of direct eyewitness
testimony of the assault on the deceased, and the purported significance of the
trial court's conclusion that the State failed to establish causation for the murder
charge.
Background facts
[6] The appellant and the deceased were in an intimate domestic relationship
and lived together in a corrugated iron shack in Tswelelang, Wolmaransstad. The
events giving rise to the prosecution occurred in the early hours of 3 November
2019. Later that morning, the deceased was found inside the shack, gravely
injured and unconscious. She was taken to Tshepong Hospital, where she later
died. The post-mortem report records the cause of death as blunt force trauma to
the head. Since the present appeal concerns only the conviction for attempted
murder, the deceased's death forms part of the factual context rather than the
juridical basis for the conviction under appeal.
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[7] The State relied primarily on the evidence of Ms Keletsamaile Johannah
Modise (Modise) and Seosenyeng John Si thole (Si thole). A proper evaluation of
their evidence is central to this appeal.
[8] Ms Modise was the immediate neighbour of the appellant and the deceased.
She knew both of them well and was familiar with their domestic circumstances.
Her evidence was that during the early hours of 3 November 2019, she was
awakened by a violent disturbance coming from the shack occupied by the
appellant and the deceased. She heard loud banging on the corrugated iron
structure, shouting, abusive language, and threats directed at the deceased. She
identified the appellant as present during the disturbance. Her evidence indicated
that the incident was not momentary but sufficiently sustained to attract her
attention and enable her to observe activity in the immediate vicinity of the shack.
[9] Modise testified that she observed the appellant moving in and around the
shack as the disturbance continued. Her account described an unfolding domestic
confrontation marked by aggression and volatility. Although she did not claim to
have witnessed the appellant physically assault the deceased, her evidence
established that a serious and violent disturbance was taking place in the shack
shared by the appellant and the deceased, that the appellant was present during
the relevant episode, and that threats were directed at the deceased.
[ 1 OJ Later that morning, when Modise returned, she observed that the deceased
had been found inside the shack, gravely injured. The evidence thus places the
deceased at the very locus from which the earlier violent disturbance emanated.
[ 11] Modise's evidence was not without limitation. She did not directly witness
the assault on the deceased. She could not account precisely for every movement
in and around the shack during the relevant period. A discrepancy also arose
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between her police statement and her oral testimony regarding how many times
the appellant moved in and out of the shack. These are material considerations,
and caution is required when evaluating her evidence. But caution does not
necessitate rejection. Her evidence remained consistent in its essential features,
namely the occurrence of a violent disturbance , the appellant's presence, threats
directed at the deceased, and the subsequent discovery of the deceased in
catastrophic condition inside the shack.
[12] Sithole's evidence requires more careful scrutiny. He testified that he was
romantically involved with the deceased and had been with her in the shack
during the relevant period when the appellant arrived unexpectedly. According to
him, the appellant confronted him immediately upon arrival, after which a
physical altercation ensued. Sithole further testified that the appellant assaulted
him, leaving him with injuries objectively consistent with assault.
[13] Sithole's account was that, after the assault on him, he fled the premises,
leaving the appellant behind. His evidence thus placed the appellant at the scene
immediately after a confrontation precipitated by the appellant's discovery of
Sithole with the deceased. His evidence also sought to implicate the appellant in
the subsequent violence inflicted on the deceased.
Assessment of the evidence
[14] Sithole's evidence, however, was materially contradictory in important
respects. Inconsistencies arose regarding the sequence of events, the deceased 's
movements , and whether he directly witnessed violence inflicted upon her. These
contradictions are not trivial. They go directly to the reliability aspects of his
account and cannot be ignored.
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[15] Yet the presence of contradictions does not compel wholesale rejection. In
S v Sauls and Others, the Appellate Division observed that there is no rule of
thumb test or formula to apply when it comes to a consideration of the credibility
of the single witness.1 Courts are required to weigh the strengths and weaknesses
of the evidence, not to adopt an all-or-nothing approach where the evidential
record plainly permits differentiation between reliable and unreliable aspects.
[16] The aspects ofSithole 's evidence establishing that the appellant confronted
him, assaulted him, and remained at the premises after his departure are
materially corroborated by objective features, including his injuries and the
broader factual matrix. What cannot safely be accepted are the contradictory
portions of his evidence concerning direct observation of the assault upon the
deceased. Importantly, the conviction does not depend upon acceptance of those
disputed portions.
[ 17] The trial court accepted that the appellant assaulted the deceased with the
intention to kill her but acquitted him of murder because it found that the lack of
detailed medical evidence regarding the deceased's hospitalization created
reasonable doubt about causation. That reasoning appears to sit uneasily with the
principles articulated in S v Tembani, where the Supreme Court of Appeal made
clear that deficient, delayed, or even negligent medical treatment does not
ordinarily sever causation when the original injury remains an operating cause.2
The State, for its part, did not engage that principle with the clarity one might
have expected. Since there is no cross-appeal against the acquittal on the murder
charge, it is unnecessary to determine that issue conclusively. It suffices to
observe that the perceived causation difficulty does not avail the appellant in
relation to the conviction presently under appeal.
1 S v Sauls and Others 1981 (3) SA 172 (A) at I 80E-G
2 S v Tembani 2007 ( I) SACR 355 (SCA) para 14.
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The discretion of an appellant court
[ 18] An appellate court approaches findings of fact, particularly those grounded
in credibility, with due restraint. In S v Francis, the Appellate Division reaffirmed
that the powers of a Court of appeal to interfere with the findings of fact of a trial
Court are limited. 3 In S v Hadebe and Others, the Supreme Court of Appeal
underscored that in the absence of demonstrable and material misdirection by the
trial Court, its findings of fact are presumed to be correct.4
[ 19] The present case depends materially upon circumstantial evidence. The
governing principles are settled. In R v Blom, Watermeyer JA stated:
' In reasoning by inference there are two cardinal rules of logic which cannot be ignored:
(1) The inference sought to be drawn must be consistent with all the proved facts ....
(2) The proved facts should be such that they exclude every reasonable inference from
them save the one sought to be drawn ... '. 5
[20] Those principles require a holistic assessment of the evidence. In S v
Chabalala, the Supreme Court of Appeal stated:
'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 ... ' 6 And in S v
Trainor, Navsa JA cautioned that:
'A conspectus of all the evidence is required.' 7
Analysis
3 S v Francis 1991 (I) SAC R 198 (A) at 204c.
4 S v Hadebe and Others 1997 (2) SACR 64 1 (SCA) at 645e.
5 R v Blom 1939 AD 188 at 202-203.
6 S v Chabala la 2003 ( I) SACR 134 (SCA) para 15 (H-1).
7 S v Trainor 2003 (I) SACR 35 (SCA) para 9.
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[21] The appellant's submission that the absence of direct eyewitness testimony
is fatal reflects a misconception of the evidential enquiry. Circumstantial evidence
is not inherently inferior to direct evidence. The question is whether the
cumulative force of the proved facts excludes any reasonable inference other than
guilt.
[22] The proven facts are compelling. The appellant discovered Sithole with the
deceased in the shack, which he shared with her. He immediately reacted
violently toward Sithole. A violent disturbance continued in the shack thereafter.
Threats were directed toward the deceased. The appellant remained present
during the relevant episode. Shortly thereafter, the deceased was discovered in
that same shack with catastrophic head injuries.
[23] These facts do not exist in isolation. Each gains significance when viewed
in conjunction with the others. The domestic context explains the confrontation.
The assault on Sithole demonstrates the appellant's immediate resort to violence.
The continued disturbance and threats directed at the deceased establish an
ongoing violent episode rather than a concluded altercation. The discovery of the
deceased in catastrophic condition in the same shack shortly thereafter provides
the culminating evidentiary link. Taken cumulatively, the evidentiary chain is
coherent and compelling.
[24] The appellant suggested that another person may have entered the shack
after his departure and inflicted the injuries. That proposition has no evidential
foundation. No evidence suggests the presence of any third party. No evidence
points to a separate later episode of violence. The suggestion is speculative. A
merely theoretical possibility does not amount to a reasonable inference capable
of generating doubt.
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[25] The alternative suggestion that Sithole may have been responsible fares no
better. He had been assaulted and had fled. No coherent evidentiary basis links
him to the deceased's injuries. Suspicion unsupported by evidence does not create
reasonable doubt.
[26] The appellant elected not to testify. It is axiomatic that an accused bears no
burden to prove innocence. In S v Boesak, the apex Court held that the right to
silence 'doe s not mean that there arc no consequences attaching to a decision to remain silent
during the trial. If there is evidence calling for an answer, and an accused person chooses to
remain silent in the face of such evidence , a court may well be entitled to conclude that the
evidence is sufficient in the absence of an explanation to prove the guilt of the accused. ' 8 The
conviction does not rest upon impermissible reasoning from silence. It rests upon
the strength of the State's case. The appellant's silence simply means that the
prima facie evidential case remained unanswered.
[27] To sustain the conviction, the State was required to prove beyond
reasonable doubt that the appellant unlawfully assaulted the deceased with the
intention to kill her. Intention is seldom proved by direct evidence and is
ordinarily inferred from conduct and surrounding circumstances. Here, the
domestic context, the appellant's discovery of Sithole with the deceased, his
immediate resort to violence, the threats directed toward the deceased, the
continuation of the disturbance, and the devastating nature of the injuries together
admit of only one reasonable inference, namely that the appellant violently
assaulted the deceased with the requisite intent.
[28] Drawing the various strands of evidence together, the State's case was not
without difficulty. Sithole's evidence contained material contradictions that
required careful scrutiny, and Ms Modise's evidence, while credible and
8 S v Boesak 200 I (1) SA 9 t 2 (CC) para 24.
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materially probative, did not provide direct eyewitness confirmation of the assault
on the deceased. Criminal adjudication does not demand perfection in witness
testimony, nor does the absence of direct evidence preclude conviction where the
circumstantial evidential chain is coherent, cogent, and excludes reasonable
doubt. The proper enquiry is not whether isolated weaknesses may be identified
in the State's case, but whether the evidence, viewed as a whole and assessed in
accordance with established principle, proves the appellant's guilt beyond
reasonable doubt.
[29] When the evidence is approached in that manner, the conclusion is
compelling. The appellant discovered Sithole with the deceased in the shack
which he shared with her. He reacted immediately with violence. A sustained
disturbance followed, during which threats were directed toward the deceased.
The appellant remained present throughout the relevant episode. Shortly
thereafter the deceased was discovered in that very shack with devastating head
injuries. These facts, considered cumulatively, establish a coherent evidential
chain. The alternative possibilities advanced on behalf of the appellant are not
grounded in evidence, but in speculation. Under the principles articulated in R v
Blom, speculative possibilities do not amount to reasonable inferences capable
of generating doubt.
[30] Although the trial court's reasoning concerning causation on the murder
charge may be open to legitimate criticism, particularly when viewed through the
lens of S v Tembani, that does not detract from the correctness of the conviction
presently under appeal. The conviction for attempted murder does not depend
upon the legal correctness of the acquittal on murder. It rests upon the proven
facts establishing that the appellant unlawfully assaulted the deceased with the
requisite intention to kill.
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[31] In our view, the State proved the appellant's guilt beyond reasonable doubt.
The conviction on count 1 is sound, and no basis exists for appellate interference .
The appeal against conviction must therefore fail.
The appeal against sentence
[32] The appellant submits that the sentence of ten( 10) years' imprisonment for
attempted murder is strikingly inappropriate. He points to his youth, 23 years at
the time of the offence, his status as a first offender, and his medical condition
( epilepsy since birth, on medication since 2009).
[33] The trial court was correct to treat the offence as serious. The appellant
acted with a clear intention to kill, using violence on a vulnerable victim.
However, the maximum sentence for attempted murder is not prescribed by
statute, and the trial court was cal led upon to impose a sentence that was
proportionate to the crime, the offender and the interests of society.
[34] We are not persuaded that a sentence other than the ten (10) years'
imprisonment on Count 1 would be more appropriate. The appeal against
sentence on Count 1 is therefore dismissed.
[35] The declaration that the appellant is unfit to possess a firearm is confirmed
because the offence involved the use of violence and although a firearm was not
involved, the declaration is consistent with the provisions of the Firearms Control
Act 60 of 2000 relating to conviction for an offence involving violence.
Order
[36] In the result, the following order is made:
1. The appeal against conviction on Count 1 (attempted murder) is dismissed.
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2. The appeal against sentence on Count 1 is dismissed.
3. The declaration that the appellant is unfit to possess a firearm is confirmed.
A REDDY
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
1 agree
JTMAODI
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances
For the appellant:
Instructed by:
For the respondent:
Instructed by:
Mr T. R. Semino
Legal Aid South Africa
Mahikeng
Adv. D. Ntsala
Director of Public Prosecutions
North West
Mmabatho