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IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]
CASE NO. CC28/2025
In the matter between:
THE STATE
vs
BAXOLILE MASIZA Accused
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J
[1] Accused was arraigned before this Court on one count of murder. It was alleged
that on 8 March 2025 he unlawfully and intentionally killed the deceased, N[...] R[...],
a 24 year old woman by hitting her with a wooden leg of a table all over her body.
The state further alleged that the accused and the deceased were in a domestic
relationship and that the death of the deceased resulted from the physical abuse of
the deceased by the accused. The accused who was legally represented pleaded
not guilty to the murder of the deceased. He, however, tendered a plea of guilty to
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culpable homicide. The state did not accept the plea of guilty to culpable homicide.
The trial therefore proceeded on the basis of the plea of not guilty.
[2] The state led the evidence of Lwando who testified that he and the accused are
cousins. On 8 March 2025 they were at his home at Gomeni Location in Tsolo
sleeping in different houses or structures in his homestead. They did not normally
stay together but the accused would visit his homestead from time to time as he
worked and stayed in Mthatha. He had earlier received a call from the accused
indicating that he intended putting up at his homestead that night and requested him
to prepare a place for him to sleep as he was going to arrive later. Indeed he
prepared a room for him in a standalone flat roofed structure.
[3] Later that evening he went away and returned in the early hours of the morning
and proceeded to his own house in the same premises and slept. He was still asleep
when he was woken up by the accused knocking at his door. He opened the door
for him and the accused asked him to come to his room saying there was a problem.
He went to the accused’s room and found the deceased lying in bed with injuries on
her head and breathing heavily or with some difficulty. She seemed tired and had a
haematoma on her hea d. The accused told him that they had a quarrel which
emanated from the fact that the deceased was cheating on him and she was denying
it which then led to the fight. The accused explained to him that when the deceased
denied cheating on him, he was overcome with anger. There was a round table in
that room, and he did not know if during the fight they bumped against that table and
it broke. The accused told him that he got hold of the leg of that table and assaulted
the deceased with it.
[4] The accused asked him to assist him in taking the deceased to hospital. He
assisted the accused in carrying the deceased to the accused motor vehicle which
was in front of his room. They rushed to Dr Malizo Mpehle Memorial Hospital in
Tsolo and on arrival there she was put on a stretcher and taken to a ward. She was
attended to and they waited. While they were waiting he heard a member of the
hospital staff saying that there was some medical equipment that they needed which
they did not have. After some time they were told that the deceased had died.
Lwando further testified that when the accused came to his room he was sober and
seemed to be sad and had tears on his eyes. He testified that his homestead had
electricity but on his arrival that early morning the light inside the accused’s room
was on but the light outside was off. The time was at about 03:00 in the morning
when he arrived and the time was at about 07:00 when the accused came to his
room. As they were taking the deceased to hospital he caused her to lean against
him as she was too weak to sit on her own.
[5] Sergeant Cunu testified that he is attached to the detective’s unit at Tsolo Police
Station. On the 8 March 2025 he was with a colleague when they received a call
from sergeant Ndlela asking them to attend to a reported murder at Dr Malizo
Mpehle Memorial Hospital. They proceeded there and found him already there. He
showed them the body of the deceased and they could see that she was badly
injured. She was bleeding on her head and some of her hair had been removed.
They were told that the accused was there within the hospital premises. They met
accused and he told them that the deceased was his girlfriend and that they had
quarrelled about another boyfriend of the deceased. He told them that he assaulted
the deceased with fists and also bumped her against the wall.
[6] He further told them that while he was assaulting her, she managed to run away.
He chased her, caught up with her and dragged her back to the room and in the
process he also pulled her with her hair. After noticing that the deceased was injured
he asked his cousin, Lwando to assist him in taking her to hospital. The accused
took them to Lwando’s homestead where the quarrel took place. On arrival there he
saw a wooden leg of a table and the accused told them that he had also used it in
assaulting the d eceased. The room was a mess and he also saw the hair that was
missing from the head of the deceased on the floor. He arrested the accused on a
charge of murder.
[7] The evidence of Dr Mlaba, the pathologist who performed the autopsy on the
body of the deceased was that on 11 March 2025 at Mthatha Forensic Pathology
Services he conducted a postmortem examination on the body of the deceased. He
made the following chief postmortem findings. The deceased’s body had bruises on
the right upper limb and the thorax which he said were indicative of the deceased
having been dragged over a rough surface. Deceased’s body had racoon’s eyes
which he described as black discolou ration around the eyes indicative of trauma on
the head or fracture of the skull. She had a massive subgalea haematoma on the
head. Dr Mlaba described subgalea haematoma as the presence of blood in the
space between the sculp and the skull which was indicative of severe trauma. Lastly,
he observed a massive subdural haematoma on the bilateral cerebral hemisphere.
He testified that this was indicative of severe trauma on the head. His conclusion
was that the deceased died of head injury secondary to assa ult. He explained that
the bruises on the body of the deceased were likely to have occurred as a result of
dragging as against falling while running. He further testified that with the brain
injuries that the deceased sustained, no medical intervention could have saved her
life.
[8] Dr Nofingxana testified that he is a medical practitioner at Dr Malizo Mpehle
Memorial Hospital in Tsolo. On 11 March 2025 he was on duty as a medical officer.
On that day at about 8:00 in the morning two men brought a patient into the hospital
and he was called to immediately come and attend to that patient. It was indicated
that the said patient had been assaulted. Because of the condition of that patient his
assessment was that she needed urgent attention in terms of what he called a triage
which is to group patients according to the extent of the urgent attention each one
needs. She was unconscious which alone indicated that she needed to be attended
to urgently. On further examination he observed some injuries and around the eyes
she was extensively dark blue so much that her eyeballs were completely closed
because of extensive swelling. He also noted that her entire head was just soft
everywhere when he tried to palpate or touch it. He explained that under normal
circumstances when a skull is pal pated it feels hard but hers was just soft. The
whole body had abrasions and that the top part of her skin was peeling off. Her ears
and nose looked like blood had come out of those openings. It was a mixture of dry
and soft blood.
[9] She was put on a drip and he also noted that the blood pressure pulse was not
recording which pointed to how critical she was. Her breathing was in the form of
gasping with no regular pattern. As he and his entire team were trying to resuscitate
her with different interventions, he realised that her pulse had stopped completely.
They did compressions which also failed. Unfortunately, she died despite all their
efforts to resuscitate her and he declared her dead. It transpired that the said patient
was a professional nurse and that one of the nurses in his team went to school with
her which created commotion in the entire hospital.
[10] Under cross -examination Dr Nofingxana testified that there is a problem of the
shortage of medical equipment in general in the Eastern Cape and the country over.
However, patients like the deceased did not need any equipment which the hospital
did not have. The equipment they had could have assisted the deceased. He
further testified that to the extent that it was suggested that there was some
equipment the hospital did not have that could have assisted the deceased, that
information was not correct . Furthermore, after the patient died he personally went
to the accused who was with another man and spoke to them himself and he never
said there was something they did not have. He confirmed that he had everything he
needed to resuscitate the deceased and had the resuscitation been successful he
would have called a medical helicopter to take her to Nelson Mandela Academic
Hospital as the injuries pointed to traumatic brain injury. He could not even take her
to an x-ray due to the highly critical condition she was in. As a result, she died within
30 minutes of them working on her.
[11] He further testified that the whole head was soft which was not normal. He,
however, could not tell what was happening inside the head because the patient
could not be taken to an x -ray. When it was put to Dr Nofingxana that the accused
would say that he assaulted the deceased once on the head, his response was that
based on the injuries he observed it was not possible that the deceased was hit once
on the head. He explained that if a person is hit once the pathway or point of impact
would be clearl y identifiable. In the deceased’s case the entire head was swollen.
The blood that was coming from the ears and nose was also pointing to brain injury.
He agreed with the doctor who conducted the autopsy that with those kinds of
injuries, no medical intervention could have saved the deceased’s life. After Dr
Nofingxana’s evidence, the state closed its case.
[12] Accused testified in his defence. He testified that he holds a Bachelor of
Medicine and a Post Graduate Diploma in Public Health. He was currently working
as a professional nurse for a company called Rhiza Babuyile which is a private clinic
in the Western Cape. When the incident occurred, he worked as a nurse for a TB
and HIV Care company. On 7 March 2025 he was at Gomeni Locality in Tsolo
drinking liquor with his friends. He received a phone call from the deceased who
was his girlfriend who said th at she wanted to go to his place of residence in
Mthatha. He told her that he would not be able to drive to Mthatha as it was far and
he had been drinking. The deceased told him that she was on the way from work
and requested to come to him at Gomeni to which he agreed. She arrived there
after 19:00 and he went to pick her up along the N2 at a nearby stop. He noticed
that she was drunk whereas he did not know her to be drinking alcohol. They both
proceeded back to the place in which he and his friends w ere drinking where he and
the deceased continued drinking. At about 23h00 he and the deceased drove to his
cousin’s homestead where he had arranged to sleep over. After about an hour or so
a quarrel ensued between them after the deceased received a phone call from her
other boyfriend which made him angry. He asked her about that phone call and she
also got angry and pushed him as a result of which he fell on the floor.
[13] He explained that after that phone call they woke up and sat on the edge of the
bed which resulted in him falling off when she pushed him. He got up and hit her
with an open hand. She fought back and they wrestled and as they were wrestling,
he saw a wooden leg of a table. He picked it up and hit her with it on the head two
times. She then exited the room and fled. She was on top of him pressing him down
as he was lying on the floor on his back when he hit her with the wooden leg of a
table. The door was not locked but was just closed and she ran into the courtyard in
front of the house where she fell on an uneven ground. He tried to pick her up to take
her back into the house but because she was heavy he could not lift her up. He
dragged her back from a distance of about eight metres from the room. They got into
the room and slept. After some time and while they were sleeping, he noticed that
she had an u nusual pattern of breathing and loud snoring. He woke up and turned
on the light in the room.
[14] He then noticed that the deceased had some blood on her chest which he
thought was from bleeding from the nostrils. On noticing the bleeding, he tried to
help her to stop the bleeding by placing her on her buttocks and applying pressure
on the nose so that the blood could clot. When she stopped bleeding he went to
Lwando’s room to ask for help. He asked him to come to his room telling him that
there was a problem. Lwando went to his room and he showed him the deceased
and told him that they had a fi ght and she was injured. They took her to hospital
where they were assisted. The nurses took the deceased and started treating her
and putting her on a drip and doing resuscitation measures and putting her on
oxygen mask. At some stage he was asked to wait outside but Lwando remained
behind while he went to wait in the car. Lwando later arrived and he appeared to be
in shock and told him that the medical staff said that they did not have a defibrillator
for shocking the deceased’s heart.
[15] Not long thereafter they were called back inside and as they entered the
casualty ward, he noticed that the medical staff were disconnecting the drips from
the deceased. He tried to check if the defibrillator was there and he did not see it.
The doctor approached them and told them that the deceased had died. He denied
telling sergeant Cunu that he also assaulted the deceased by bumping her head
against the wall. He never foresaw that the injuries sustained by the deceased might
cause her to die. He never intended to kill the deceased. He testified that the
courtyard at Lwando’s homestead had some small stones which could have caused
the bruising. He testified that if the deceased had been properly stabilised at the
hospital she might not have died and could have been transferred to Nelson
Mandela Hospital where there ar e neurologists that would have assisted with the
brain injury.
[16] Under cross -examination he confirmed that he hit the deceased on the head
with a leg of a table two times. It was pointed out to him that when he testified he
gave a version that was never put to state witnesses, that of assaulting the deceased
with an open hand on the cheek and of being pressed down by the deceased while
he was lying down on his back. He said that he knew that he would have an
opportunity to testify so that he could explain what happened. He also confirmed not
telling Lwando that he h ad to defend himself by assaulting the deceased saying that
at that stage he was overwhelmed with shock and needed to rush the deceased to
hospital. In assaulting the deceased he was just trying to remove her as she was
sitting on top of himself. He grabbed something that was closer to him and hit her
with it on the head which caused her to move away from her. When he was
dragging her he held her in such a way that her upper body was up and away from
the ground by holding her underneath her armpits. As a r esult, the only part of her
body that was touching the ground was her lower body.
[17] Accused further testified that he dragged the deceased into the house because
he could not lift her up and she was unable to walk not because she was injured but
due to drunkenness and she had no balance. He did not want to waste time by
begging her to get back into the house. He confirmed assaulting the deceased with
an open hand and with a leg of a table two times even though according to him she
had no balance. She did not appear to him to be injured as she had no visible
injuries and therefore, he took it that she was drunk and had fallen on slippery
surface. He testified that he also sustained injuries in that when they were wrestling
his arms had scratches and even his right index finger was swollen. He confirmed
not telling his attorney that he also got injured during his fight with the deceased. He
also said that he did not tell the medical staff in hospital about his injuries because
he wanted the deceased to be prioritised.
[18] He confirmed that before he assaulted the deceased, she was able to walk on
her own. He further testified that he did not see the bruises as needing urgent
medical attention and he felt that he could attend to them in the morning or even take
the deceased to a clinic. The head injuries were not visible at that stage. It was only
in the morning that he saw the injuries and that the deceased was bleeding from the
nostrils which was why he rushed her to hospital. He confirmed that it was never put
to Dr Nofingxana that the hospital did not have a defibrillator. He confirmed that he
removed the deceased’s hair when they were wrestling and denied that they got
removed when he was dragging her.
[19] On being asked some questions by the court the accused accepted that
anybody who has a head injury must receive immediate medical attention. However,
despite that he decided to sleep without having assessed her to see if she needed
urgent medical attention. He also testified that it could be that some of the bruises
were consistent with dragging. He could not explain the bruises on the deceased’s
upper body if he had held her by her armpits and lifted her up when he was dragging
her. He further confi rmed that the reason for dragging the deceased back into the
house was that she was going to take too long to walk on her own. It was at night,
she was not dressed and he was also not dressed and it was cold outside. He did
not think of taking a blanket to cover her and assist her in walking back to the house
instead of dragging her.
[20] On the evidence as briefly summarised above, there is a lot that remains unclear
about the fight between the accused and the deceased and how she got to be so
badly injured. What is not in dispute is that the accused, apparently out of a jealous
rage, beat the deceased so badly that she later died in hospital within hours of being
assaulted. How the beating was effected and the exact details of what actually
happened immediately before and immediately after the severe beating remains a
subject of controversy. This is due to the fact that there were only two people in that
room at the time of the incident being the deceased and the accused.
[21] This makes matters more difficult because the person who survived to tell the
story is the very person who was the aggressor who, regrettably has given a jumbled
account of events with a number of aspects of his account being so improbable that
it is false. What is clear though is that he admits beating the deceased as a result of
which she later died. The case therefore turns on whether in doing so, the accused
had the necessary mens rea to kill the deceased. In Pistorius1 Leach JA gave a very
detailed and insightful treatise of the element of intention, specifically in murder
cases in dealing with intention which is also the issue before me in this matter.
[22] He said:
“In cases of murder there are principally two forms of dolus which arise: dolus
directus and dolus eventualis . These terms are nothing more than labels used by
lawyers to connote a particular form of intention on the part of a person who commits
1 S v Pistorius 2016 (1) SACR 431 (SCA); 2016 (2) SA 317 (SCA) para 26.
a criminal act. In the case of murder, a person acts with dolus directus if he or she
committed the offence with the object and purpose of killing the deceased. Dolus
eventualis, on the other hand, although a relatively straightforward concept, is
somewhat different. In contrast to dolus directus , in a case of murder where the
object and purpose of the perpetrator is specifically to cause death, a person’s
intention in the form of dolus eventualis arises if the perpetrator foresees the risk of
death occurring, but nevertheless continues to act appreciating that death might well
occur, therefore ‘gambling’ as it were with the life of the person against whom the act
is directed. It therefore consists of two parts: (1) foresight of the possibility of death
occurring, and (2) reconciliation with that foreseen possibility. This second element
has been expressed in various ways. For example, it has been said that the person
must act ‘reckless as to the consequences’ (a phrase that has caused some
confusion as some have interpreted it to mean with gross negligence) or must have
been ‘reconciled’ with the foreseeable outcome. Terminology aside, it is necessary
to stress that the wrong doer does not have to foresee death as a probable
consequence of his or her actions. It is sufficient that the possibility of death is
foreseen which, coupled with a disregard of that consequence, is sufficient to
constitute the necessary criminal intent.”
[23] In Makgatho2 which was decided by the same court a few years earlier,
Shongwe JA put the same principle quite succinctly as follows:
“The question to be decided is whether the state has proven beyond a reasonable
doubt that the appellant subjectively foresaw the possibility that his action would
result in the death of the deceased and nevertheless persisted in his conduct….”
[24 The version of the accused consists largely of an absurd concoction of events
made up by putting together a badly thought, clearly rehearsed but poorly presented
made up by putting together a badly thought, clearly rehearsed but poorly presented
and as such disjointed account of what happened during and immediately after the
incident. In giving his evidence he painted the deceased, who was the only victim of
the brutal assault as the aggressor and himself as a weak person who was pushed
off and fell resulting in him being under the deceased who was sitting on him. Yet
the deceased was so badly injured that the two doctors called by the state testified
2 S v Makgatho 2013 (2) SACR 13 (SCA) at page17 d.
that the extent of her injuries were such that no amount of intervention could have
helped to save her life. Inexplicably, he sustained no injuries at all save the
afterthought injuries he only mentioned under cross -examination for which he never
received treatment which were just one of his many falsehoods in his evidence.
[25] Even with regard to what might have caused the death of the deceased, I
understood the accused to be contending that if the hospital had the defibrillator, the
deceased could have survived or might have been resuscitated. This was again
another of the accused’s attempts to falsely minimize his role in the killing of the
deceased and blame the hospital instead to avoid full accountability for the death of
the deceased. This ignored the objective evidence as gleaned from the autopsy
report and the evidence of the doctor who treated the deceased in that hospital. The
evidence of the accused in this regard is closely related to his preposterous
suggestion that after he had dragged the deceased back into the house they went to
bed with the deceased not appearing as seriously injured.
[26] This was also clearly false beyond reasonable doubt. From the objective
medical evidence the deceased was so badly injured from the assaults by the
accused that there is no way that could not have been evident to him shortly after the
brutal assaults ceased. The head injuries that the deceased sustained were so
serious that the evidence of sergeant Cunu that he was told by the accused that
other than hitting the deceased with a wooden leg of the table, he also bumped her
against the wall seems a not so remote possibility. The accused denied that and
tried to explain it away by saying that if he had bumped the deceased against the
wall, there would have been blood on that wall. This ignored the fact that the
deceased had what Dr Mlaba called a massive subgalea haematoma, among other
serious injuries.
[27] A loose definition of a subgalea haematoma is that it is a medical emergency
where blood pools into the potential space between the skull’s periosteum (outer
bone lining and the scalp’s galea aponeurotica). This occurs when emissary veins
rupture. The presence of the massive subgalea haematoma is perfectly aligned with
Dr Nofingxana’s evidence that the deceased’s head was soft everywhere. Dr
Nofingxana’s other evidence was also that if it was the case that the deceased had
been struck once on the hea d as was put to him on behalf of the accused, there
would be a clearly identifiable pathway of that assault. Again, this evidence speaks
to the deceased having most probably been struck on the head many times than the
accused wanted the court to believe. This could have included the deceased’s head
being bumped against the wall. She was also pulled by her hair which explains the
deceased’s hair that police found at the crime scene as depicted in the photo album
and about which sergeant Cunu testified.
[28] It is highly probable that the deceased was either assaulted on the head many
times and/or that her head was bumped against the wall. These are highly probable
and the accused contentions and evidence otherwise are so improbable that they
are false. The cruelty with which the deceased was assaulted as a result of which
she sustained the extremely severe injuries that she sustained, the helpless
deceased being dragged on a hard and rough suffice after trying to run away most
probably as an integral part of and the continuation of the cruel punishment she was
subjected to all point to a murderous intent. The lack of candour and the apparent
dishonesty and falsehoods on the part of the accused do not minimize the severity of
what he did to the deceased. They were designed to hide the truth of the extent of
the brutality with which the murderous intent was pursued and accomplished. This is
not a case in which the deceased was struck once or twice with an open hand, fell
on the ground or against another hard object and died. The proper and objective
analysis of the evidence is that the accused, in assaulting the deceased to the extent
in which he did directly intended to kill the deceased and there was no new
intervening act that could have contributed to the death of the deceased.
[29] That after such a severely brutal assault, the accused and the deceased fell
asleep only for him to be woken up by the loud snoring of the deceased with some
blood coming out of her mouth and nostrils and ending up with her head being soft
all over as Dr Nofingxana testified is simply untrue as was a lot of the evidence of the
accused. The attempt by the accused to minimize the severity of the injuries suffered
by the deceased are all based on blatant lies told with a straight face. It is worth
noting that other than the bruises on the thorax and upper limbs, the deceased did
not have any injuries anywhere else other than the head to which the blows were
directed. These all speak to a direct intention to kill the deceased on the part of the
accused. I reject the state’s submission that the accused did not have a direct
intention to kill the deceased as not being supported by the objective evidence that
depicts a picture of the extreme severity of the injuries sustained by the deceased
who was evidently defenceless at the time of the merciless assault.
[30] The fact that the accused, after that brutally severe assault, rushed the
deceased to hospital must have had more to do with it dawning on him that if he did
not belatedly try to do something to save the deceased, she would actually die and
he would be held accountable for her death. It was a self -serving afterthought whose
purpose was to protect himself from the possible consequences of the death of the
deceased and had nothing to do with him caring about saving the life of the
deceased. The fact tha t an attempt to save himself from the consequences of the
deceased. The fact tha t an attempt to save himself from the consequences of the
certain and imminent death of the deceased coincided with and depended on the
deceased not dying did not suddenly transform him into a hero who tried to save the
life of the deceased and not the cruel and brutally abusive woman murderer that he
actually is. I do not understand how anyone beats any person to a pulp, never mind
a woman, and does so severely on the head, can still claim not to have intended to
kill that person when the person dies within hours. That simply does not make sense.
If the intention was to punish the deceased for her alleged cheating which was
abusive on its own, surely the assault could have been less severe and directed
elsewhere than the head. He also had an easy option of ending their relationship if
he was so upset about the alleged cheating.
[31] I readily accept that the murder of the deceased might not have been planned
by the accused as there is no evidence whatsoever that the accused planned the
killing of the deceased or that the murder was premeditated. On the evidence before
me, it is more probable that it was a spare of the moment decision. However, the
lack of planning or premeditation should not be confused with the absence of a direct
intention to commit murder. In Jolly3 Innes CJ explained the approach to intention to
kill as follows:
“[A]n intention is inferred to bring about the intrinsically probable consequences of an
act. A similar doctrine is recognised by English law. “It was a universal principle,”
remarked Lord Ellenborough, “that when a man is charged with doing an act of
which, the probable consequences may be highly injurious, the intention is an
inference of law resulting from doing the act.” That statement of the law which has
been repeatedly approved, has been sometimes used to support the view that the
inference of intent to be drawn from the injurious nature of an act is a conclusive
inference. But that is not so - in the sense that is a presumptio juris et de jure . If it
were, no evidence could be led to rebut it. Where the nature of the illegal act is such
were, no evidence could be led to rebut it. Where the nature of the illegal act is such
that only one inference as to criminal intent is in the nature of things possible, then
3 R v Jolly and Others 1923 AD 176 at page 181.
such an inference becomes conclusive in that evidence to the contrary though
admissible must fail to displace it.”
[32] The differentiation between pre -meditation and intention was, in my respectful
view, aptly explained by Roelofse AJ in Dube4 as follows:
“The concepts of premeditation and intention are different. Premeditation involves a
thought process that contemplates a certain outcome and the means to achieve that
outcome. Intention in all its forms ( dolus directus, dolus indirectus and dolus
eventualis) involves the perpetrator’s state of mind before and while the criminal act
is being committed.
Premeditated murder is more blameworthy than a murder committed at the spare of
the moment or when death results after an assault. Premeditated murder remains the
crime of murder. It does not constitute a special species of murder. The
circumstances under which the murder was committed must show the murder was
premeditated so that the court is able to consider an appropriate sentence. If
premeditated murder is proven a court is obliged to impose a minimum sentence of
life imprisonment unless exceptional circumstances exist to deviate from that
sentence. This is prescribed in section 51(1) of the Criminal Law Amendment Act 105
of 1997 (the Minimum Sentences Act).”
[33] While the murder of the deceased was neither planned nor premeditated on the
evidence tendered by the state, I have no doubt in my mind that the weapon used by
the accused in assaulting the deceased and the targeted part of the body which is
the head to which the blows were directed as well as the severity of the assault all
point to the accused having intended to kill the deceased. All those considered with
the dragging of the deceased after that severe beating are all irreconcilable with lack
of an intention to kill the deceased in my view.
[34] In Trainor5 Navsa explained the approach to evidence in a criminal trial as
follows:
4 S v Dube 2023 (1) SACR 513 (MM) paras 13-14.
“A conspectus of all the evidence is required. Evidence that is reliable should be
weighed alongside such evidence as may be found to be false. Independently
verifiable evidence, if any, should be weighed to see if it supports any of the evidence
tendered. In considering whether evidence is reliable, the quality of that evidence
must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of
course, must be evaluated against the onus on any particular issue or in respect of
the case in its entirety….”
[35] These being criminal proceedings the guiding principle was set out very
succinctly in Shackell6 as follows:
“It is a trite principle that in criminal proceedings the prosecution must prove its case
beyond reasonable doubt and that a mere preponderance of probabilities is not
enough. Equally trite is the observation that, in view of this standard of proof in a
criminal case, a court does not have to be convinced that every detail of an
accused’s version is true. If the accused’s version is reasonably possibly true in
substance the court must decide the matter on the acceptance of that version. Of
course, it is permissible to test the accused’s version against the inherent
probabilities. But it cannot be rejected merely because it is improbable; it can only be
rejected on the basis of inherent probabilities if it can be said to be so improbable
that it cannot be reasonably possibly true.”
[36] Having considered all the evidence in this matter and in particular, the evidence
of the accused himself against inherent probabilities, my conclusion is that the
accused lied a lot about the events of that morning leading to the death of the
deceased. This is especially on how he inflicted the injuries on the deceased, the
dragging of the deceased and the injuries she sustained which must have been
instantly evident to the accused. I similarly find as being so improbable that it is false
that the accused never turned the electric light on in the room at any stage
that the accused never turned the electric light on in the room at any stage
immediately before, during and after the assault as he suggested. This seems to
have been conveniently said to be the case to give credence to his obviously false
5 S v Trainor 2003 (1) SACR 35 (SCA) at page 41 b-c.
6 S v Shackell 2001 (2) SACR 185 (SCA) at 194 g-h.
evidence that he and the deceased went to sleep after such a severe assault without
him realising how badly injured the deceased was. The evidence of the accused in
this regard, besides the fact that it is so improbable that it is false, is directly
contradicted by the evidence of Lwando. Lwando’s evidence was that when he
returned that early morning, the outside light of the house occupied by the accused
was off but the light inside his room was on.
[37] On a proper conspectus of all the evidence, the state has proved that the
accused intentionally killed the deceased as charged and therefore the state has
proved its case beyond reasonable doubt.
[38] In the result the accused is found guilty of the murder of the deceased N[...]
R[...].
______________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
Appearances
Counsel for the state : A. Bikitsha
Instructed by : NPA
Mthatha
Counsel for the accused : M. Dalasile
Instructed by : Mnikelo Dalasile & Associates
Mthatha
Date of hearing : 10 June 2026
Date of delivery : 17 June 2026