S v Kekana (CC48/2023) [2024] ZAGPPHC 1314 (29 November 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 1314 | Noteup | LawCite sino index ## S v Kekana (CC48/2023) [2024] ZAGPPHC 1314 (29 November 2024) S v Kekana (CC48/2023) [2024] ZAGPPHC 1314 (29 November 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1314.html sino date 29 November 2024 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 GAUTENG DIVISION PRETORIA CASE NO :  CC48/2023 DATE: 2024-08-16 (1) REPORTABLE: YES/ NO (2) OF INTEREST TO OTHER JUDGES: YES/ NO (3) REVISED SIGNATURE: DATE: 29/11/2024 In the matter between THE STATE and NGAGALELA KEKANA                                                   Accused JUDGMENT MOSOPA, J: The accused is Mr Ngagalela Kekana a 39-year-old male South Africa citizen (According to the indictment), he is a resident of 5[…] Extension 27, Olievenhoutbosch and he is arraigned on one count of murder read with the provisions of Section 51(1) of Part 2 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 . Allegations against the accused are that he unlawfully and intentionally killed R[...] G[...] J[...] (deceased) on the 22 nd of October 2022, the deceased and the accused were in a love relationship. An amendment was sought before the commencement of the proceedings in terms of the provisions of Section 86(1) by the State, which application was not opposed by the defence, to amend the provisions in which a murder charge is to resort to read the murder in terms of the provisions of Section 51(1) and also to amend the name of the deceased to read G[...], which application was granted. Accused pleaded not guilty to the charge of murder proffered against him and made a statement in terms of the provisions of Section 115(1) of the Act indicating the basis of his defence and he stated that: 1.         On the 21 October 2022 at approximately after 20:30 he left the deceased at her shack and at that stage, the deceased was unharmed. 2.         He then proceeded and went to Matshangane Tavern, situated in Extension 15, Olievenhoutbosch in the company of Lerato Tlhago, wherein he spent the whole evening until the Saturday morning there and only returned to his place of residence (not where he resided with the deceased) at approximately 06h00 and tried to sleep. 3.         Thereafter he proceeded to his neighbour’s place, Tshepo (Sene Mahlong) and he had a beer there and only went back to the deceased resident at approximately 9 am.  That is when he found that the deceased was injured and had passed on.  Such statement was confirmed by the accused to be correct. The defence and the State also entered into Section 220 admissions which were recorded as follows that: 1.         The accused and the deceased were in a domestic relationship as a boyfriend and girlfriend. 2.         That the incident that resulted into the death of the deceased occurred on the 22 October 2022 at the deceased rental place in Olievenhoutbosch, Pretoria. 3.         The declaration of death of the deceased by Ntefeleng Joyous Mokoena of the Gauteng Emergency Medical Services is admitted into record as evidence and marked as EXHIBIT B. 4.         The deceased sustained no further injuries from the time her body was conveyed from the scene until post-mortem examination was conducted on 24 October 2022. 5.         The body of the deceased marked with serial number DR1783/2022 was correctly identified by Matidiso Anna Mokone as being that of R[...] G[...] J[...], and form FPS377 used to identify the body of the deceased is admitted into record as evidence and marked as EXHIBIT C. 6.         The post-mortem examination conducted by Dr Ryan Blumenthal; a forensic pathologist based at the Pretoria Medico Legal Laboratory.  Its authenticity and the correctness of the contents, fact and finding is not placed in dispute and admitted into evidence and marked as EXHIBIT D. 7.         The cause of death is correctly noted indicating the cause of death as ‘gunshot head’. 8.         The photographs of the deceased taken at the Pretoria Medico Legal Laboratory by Warrant Officer Klaas Moseseyane Manhle of Lyttelton Local Criminal Record Centre.  The sworn statement, key to photographs and photo album is admitted into evidence and marked EXHIBIT E, E1 and E2 respectively. It is because of a plea of not guilty tendered by the accused that the State was called upon to prove the guilt of the accused beyond reasonable doubt.  In an attempt to discharge the burden of proof placed on it, the State led the evidence of three witnesses, since which evidence is summarised as follows: The first witness to testify in the State's case was Ms Ntombifikile Grasha Vuyile who was the neighbour to both the deceased and the accused place of residence. Since the accused stayed in that area with the deceased, despite the witness not having anything against him or had a quarrel in the past, accused was not in speaking terms with her.  Before this incident, she used to go to the deceased place of residence to buy atchaar as the deceased was selling achaar at her place. On the 21 October 2022 at approximately 19h00 she was seated outside her house as it was hot inside.  It was not dark at that stage and illumination was not needed for one to make an observation. While seated there she saw the accused and the deceased entering their premises and the accused was fighting the deceased asking her as to what type of beer, in reference to alcohol, did she consume. Approximately five minutes after they entered their house, she heard a commotion, and the shack was moving which indicated there was a fight inside that shack. After hearing such commotion, it became quiet again and that is when she observed accused coming out of the shack talking on the phone.  Accused took a long time talking over a phone and that is when she went inside her house and went to sleep. She was then woken up by the barking of the dog which belongs to the deceased at 2am on the 22 October 2022.  There was a white vehicle parked in the deceased yard and as the dog was barking it was staring towards the shack of the deceased. She saw that the dog barking as her bed is next to her house window and she was looking through that window. The window that she was making observation through is situated directly to the deceased house.  At that stage it was in the early hours of the morning, but she could still see the dog as it was next to the vehicle which was parked there. The dog barked for a very long time, then it was quiet and she could no longer hear the barking of the dog.  After that incident relating to the barking of the dog she slept again. In the morning at approximately 5am she was woken again by the dog barking and when she saw through the window, she saw the accused feeding that dog.  It was during the summer and the visibly was clear and she did not require any illumination to see. She woke up from her bed at 6am and went outside her house to do laundry after making her bed.  As she was taking her laundry outside, she observed the accused outside his shack.  Then she did her laundry, and it was approximately 7am. She then observed the accused leaving his premises as she was busy doing her laundry and he went out of the gate.  Accused passed the pathway from where she was carrying water from the tap inside her yard.  Her tap is inside her yard but situated closer to the pathway. As the accused was passing, he greeted her for the first time since knowing the accused as he would normally pass her without greeting.  After greeting he said to her ‘ moagi’ meaning neighbour and said to her “your neighbour inside the house is injured” referring to the deceased. That is when she asked him why is she injured, how was she injured and where was the accused because they are always together. The accused responded by saying that he was not around and that he was at his house, not where he stayed with the deceased.  Accused did not tell her how deceased was injured. Accused house was in Section 16 and after speaking to her he walked away heading towards the direction of Section 16. At the time the accused was having two bottles of Hunters (liquor) and he appeared to be sober to her. After that he then requested her other neighbour Mbali to accompany her to the landlady’s place as she was staying in another property, not where the deceased stayed.  They met the landlady when she was on her way to throw away dirt and she inform her that accused told her that the deceased is injured. Then they went to the deceased place together with the landlady and when they arrived there the landlady knocked at the door but there was no response.  They tried to open the door which was hard to open but they eventually managed to open the door as it was not locked. They entered the deceased shack and found her lying on top of the bed and with her face was facing up and her knees were up.  The landlady called the name of the deceased, but she did not respond. The landlady called out the name of the deceased for the second time and again there was no response, and they went outside at the shack. She observed that the deceased head was wrapped with a towel, and it was soaked in blood.  She also saw what she described as a cut just on top of the deceased eyebrows. They cried while they were outside the shack and community members started gathering there, and they went in for the second time.  They called out the name of the deceased again and that is when the accused entered the shack and went straight to where the deceased was lying and uncovered the blanket that was covering the body of the deceased and said, “this person is cold”.  Accused called her and said, “come and feel her, she is cold”.  But she refused to do that. They then left the room and went outside; the accused also followed them.  The people who gathered there were insisting that the police and the ambulance must be called to the scene and the deceased was declared dead by the ambulance personnel. She has known the accused for a period of approximately eight months at that stage and she would often see the accused visiting the deceased.  She would approximately see the accused five days in a week. On the 21 October 2022 when he saw the accused, he was wearing a khaki short and a light blue t-shirt.  On the 22 October accused was wearing a long khaki pants and a red golf shirt.  When he saw him at around 07:30 on the 22 October he was wearing long pants, but he had changed the top. In cross-examination it was denied that there was a fight between the deceased and the accused.  That the place where this incident happened was not fitted with streetlight and it is normally dark at night.  That she could not hear any gun shots as she was asleep. She testified that as the dog was barking at night at around 2am he heard the voice of the accused shouting at the dog saying, “shut up”.  When they entered the shack, they found the curtain that was used to divide the rooms on the floor. The second witness for the State was Ms Gladys Kubheka who is referred to as the landlady of the deceased by the first witness.  She confirmed that she knows the accused and that he was the boyfriend of the deceased.  She also confirmed that she was not staying at the place where the deceased was renting but at her parental place, also in Olievenhoutbosch. She also confirmed that Grasha (referring to the first State witness) and Mbali also came to her place in the morning on the 22 October 2022.  On that day she woke up at 6am and cleaned her house for approximately an hour and went to empty the dustbin.  That is when she met Grasha and Mbali, it was between 07:15 and 07:30. She also confirmed that they went to the deceased place and knocked with no response and confirmed the manner in which they found the deceased.  She also confirmed the presence of the towel, which was wrapping the deceased head, which was full of blood. Also confirmed that the curtain which was used to divide the rooms was on the floor.  She also confirmed that the accused arrived when they went inside the house for the second time and confirmed also that he touched the deceased and said she is cold and has passed away.  At the time when the accused arrived, she was standing by the door side of the shack. When she arrived for the first time with Grasha and Mbali she did not know where the accused was, but he was not present at the scene. When they arrived at the deceased place they found no person there.  She also denied that the accused only arrived there at 9 am. When she saw the accused, he appeared to her to be scared and was having a bottle of beer, but he was not drunk as he was able to communicate with people who were gathered there and answering questions that he was asked.  She further confirmed that the police and the ambulance personnel arrive at the scene. The last witness for the State was Dr Ryan Blumenthal, the forensic pathologist who conducted an autopsy on the body of the deceased on the 24 th of October 2022 commencing at 09:30. Dr Blumenthal also confirmed to have compiled a report which formed part of the Section 220 admissions. The witness was only called to clarify certain aspects contained in his report at the request of the defence.  In his chief post-mortem finding on the body of the deceased he made the following findings: That the body had a tight-contact gunshot entrance wound to the left temple region of the head.  A singular 9mm type projectile was located lodged within the central hemisphere.  The gunshot wound travelled from left to right in a relatively upward angle of the trajectory. No other injuries to the body could be identified.  During the autopsy he took pictures to resemble visual presentation of the body of the deceased, which photos were admitted into evidence as EXHIBIT B1. In cross-examination he confirmed that he did not see any other injuries on the body of the deceased and the swelling on the face of the deceased can be attributed to the gunshot wound. He only considered healing and acute injuries and not old scars.  After leading the evidence of the witness, the State closed its case. Accused testified in his defence and confirmed that the deceased was his girlfriend, and they have been in a relationship for a period of seven years. He had two shacks, and he would at times spend three days at his shack and at times spend three days at the deceased shack. The deceased shack was acquired when the EFF (political party) was cutting stands and he, together with the deceased bought corrugated iron sheets to build the deceased shack. On the 21 October 2022 he met with the deceased at Rates Spaza and they remained there for approximately two hours and thereafter they left and went to the deceased shack.  According to the accused they went to the deceased shack after eight o'clock in the evening. When they arrived there, he dropped off the vegetables that he brought and spoke on the phone with his sister for a minute and then phoned Lerato Tlhago, and their conversation lasted for a period of 15 seconds. Their conversation was relating to the fact that they were going sleep over at the Matshangane Tavern and further that they had to meet at R55 Road. He left the deceased place at around 08:30 in the evening.  From there he proceeded to Matshangane Tavern with Lerato and spent the whole night there until the morning when he left at around 5:30am and went to Shoba where he resides. At around 6am while he was trying to sleep, a person knocked at his door and that person was looking to buy the deceased dogs.  He told that person to come back at 10am as the deceased would normally wake up around that time.  He did not sleep and went to his neighbour’s house, Tshepo, and consumed liquor there until past 9am and then went to the deceased place. When he arrived there, he found the gate opened and the shacks door was not locked.  He entered and asked the deceased if she was still sleeping and there was no response, and he saw blood stain on the floor and cupboards. That is when he went out of the shack and asked the deceased neighbour if she saw anyone last night and she informed him that she heard people’s voices and the dog barking.  The neighbour requested him to sit down, and he complied.  He informed her that the deceased is injured on the head. The neighbour then left to call her friend, and he requested them to call the police.  She came back with her friend, and they entered the shack, while he remained outside. After finding out that the deceased was unresponsive, they called him inside the shack saying that as a partner he must come inside.  He then touched the deceased neck and said that it is cold. The police arrived there, and they ask him where he was the previous night, and he told them that he was at Extension 15 and further told them that he is not the one who killed the deceased.  He then took the dogs to his shack as the police were saying that they were making noise. At his place, the police asked for a permission to search his premises and nothing relating to the murder of the deceased was found.  He denied being present at the deceased place at 2am and 5am respectively as alleged by the first State witness.  He is not the owner or a holder of a firearm. After the testimony of the accused the matter was adjourned at the request of the accused to secure the attendance of his witnesses. The State assisted the defence in trying to bring such witnesses to court but when the matter reconvened for further hearing as the defence indicated that they could not succeed in securing the attendance of such witnesses to court and the accused closed his case without further leading evidence. The onus of proof is on the State to prove the guilt of the accused beyond reasonable doubt.  In State v Van Der Meyden 1999 (1) SACR 447 (W) at 448 para (f-g), Nugent J, when dealing with onus of proof in criminal cases stated: “ The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent (see, for example, R v Difford 1937 AD 370 at 373 and 383). These are not separate and independent tests, but the expression of the same test when viewed  from opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other.” Before embarking on an in-depth analysis of the evidence I want to first deal with the contention raised by Mr Alberts on behalf of the accused, that I must draw an inference on the fact that the State failed to lead the evidence of the witness who appears on the witness list and depose to a statement to the police. Mr Alberts contended that it was the intention of the defence to cross-examine such witness if his evidence was led by the State.  Such failure on the part of the State must be in fact to mean that if such evidence of the uncalled witness was led it could have contradicted the State witness whose evidence was led. It is important to note that despite the defence being in possession of such statement by the uncalled witness no attempt was made by the defence to have such statement being admitted into evidence, as is clear that the defence did not intend to call such witness as a defence witness but primarily wanted to cross-examine such uncalled witness. It is also plain that the State’s case rested on the evidence of a single witness pertaining to the events commencing at 7:30pm on 21 October 2022 and also at 2am and 5am, up until 7am when the witness met with the accused next to her tap. In State v Teixeira 1980 (3) SA 755(A) at 766 when dealing with an inference that can be drawn from the State’s failure to call the witness the following was stated: “ In my opinion, the failure by the State to call Tshabalala to testify as a witness justifies the inference that in counsel's opinion his evidence might possibly give rise to contradictions which could reflect adversely on Sarah's credibility and reliability as a witness. In my opinion, therefore, the Court a quo erred in concluding that the evidence of the single witness, Sarah, was satisfactory in every material respect, and that it was safe to convict appellant of murder on the   strength of her uncorroborated evidence, notwithstanding the improbability inherent in her version. In my opinion, the failure by the State to call Tshabalala to testify as a witness justifies the inference that in counsel's opinion his evidence might possibly give rise to contradictions which could reflect adversely on Sarah's credibility and reliability as a witness.” In contention Mr Molokomme on behalf of the State contended that it is because of the Section 220 admissions concluded by the defence and the State that the State deem it not necessary to call such witness to testify on behalf of the State. This Court is not privy to the contents of such witness statements to the police, for instance stated supra .  It is important also to know that the Court in Teixeira matter made a finding that the single witness evidence was not satisfactory in every respect and such improbable. In casu I have not yet made such a finding in regard to a single witness and this aspect will be revisited when a finding is made in that regard. Section 208 of the Act makes the following provision: “ An accused may be convicted of any offence on the single evidence of any competent witness.” There are inherent dangers in relying exclusively on the sincerity and perceptive powers of a single witness and such evidence must be approached with great caution by the Court.  Such evidence should be clear and satisfactory in every material respect. Thus, the section ought not to be invoked where for instance the witness has an interest or bias adverse to the accused, where he has made a previous inconsistent statement, where he contradicts himself in the witness stand, where he has been found guilty of an offence involving dishonesty, where he has not had proper opportunities of observation, et cetera.  (See the matter of R v Mokoena 1932 OPD 79 at 80). It is not placed in dispute that Ms Vuyile saw on both the accused and the deceased when they were entering the deceased yard on the 21 October 2022. According to Ms Vuyile it was around 07:30 in the evening whereas accused testified they arrived there at past eight in the evening.  It is also not placed in dispute that after arriving there, there was the stage when accused went out of the deceased shack and had a conversation on the phone.  What is placed in dispute is the duration of such a telephone conversation. From the above it is clear that Ms Vuyile did not make a mistake when she said that she saw both the accused and the deceased entering the deceased premises and later the accused speaking on the phone. Ms Vuyile also made an observation, even though denied by the accused, of a fight between the two as they were entering the yard with the accused saying asking the deceased as to what type of alcohol did she consume. This cannot be farfetched as accused, on his own version, says that they were together at Rates Spaza were accused consumed alcohol before they went to the deceased shack even though he testified that the deceased did not consume any alcohol. They were at Rates Spaza for a period of approximately two hours and what is most interesting is that they bought onions and tomatoes there. The only inference to be drawn is that such vegetables were meant for preparation of their meals for that night but looking at the time they spent there and the time they arrived at the deceased place it may be that this may have not sit well with the accused. According to Ms Vuyile shortly after arriving at their shack she could hear commotion inside their shack.  Ms Vuyile’s shack and deceased shack are not situated far from each other as they have an estimated distance of 28 metres apart. She heard what she described in evidence as the shaking of the shack, which she defines as if someone was pressed hard against the corrugated iron sheets of the shack. She could hear that the accused was slapping the deceased because of the sound she heard. On this aspect Mr Alberts contends that if really the deceased was assaulted, as Ms Vuyile wants this Court to believe, such does not accord with the findings at the post-mortem as no other injuries was found on the deceased except for the gunshot wound. The forensic pathologist also testified that he could not see any other injuries on the body of the deceased, if it was the position, he could have noted such in his report. The evidence does not indicate the duration of this assault and Ms Vuyile could not be in a position to assist Court as to how the deceased was assaulted as she did not observe the assault herself, save for the sounds of slaps that she heard. However, what is important is what Ms Vuyile saw and heard in the early hours of the morning.  According to her after entering her shack she went to sleep and could not hear any gunshots.  She was only woken up by the barking of the dog at 2am and she described such barking as unusual.  This issue of dog barking at 2am is not placed in dispute in view of the defence which is raised by the accused. The accused version was that at that time he was not present, but he was at Matshangane Tavern where he was enjoying himself together with Tshepo.  Ms Vuyile peered through the window, even though it was dark she saw a white vehicle parked at the deceased premises and next to it there was this barking dog. The dog was barking while it was facing towards the shack of the deceased.  She heard a voice saying “shut up” to the dog and said that it was the accused voice that she heard.  She did not see the accused but only heard the voice. It is trite that the voice identification evidence proffered by the state witness like in casu is highly problematic.  It is common cause that no voice identification parade was held in this case but what we have is dock identification. It was easy for Ms Vuyile to say that she heard the voice of the accused as he is the only known male residing at the deceased place of residence and the fact that it is only the accused who is facing the murder charge of the deceased. In State v Mahlangu 2018 (2) SACR 64 , the Court when determining the voice identification evidence stated: “ Such voice evidence must be accurate, the recollection of the events must be accurate and the conveyance of the events must be accurate.  The complainant had no hearing problem, he was with the appellant for approximately six hours and the complainant has known the appellant for a considerable time.” The Court should always endeavour when admitting such evidence to exercise a great measure of caution.  It must not be admitted based on inclusion and common sense. For such evidence to be admitted it is important for the Court to consider the following factors; Evidence of voice identification parades, familiarity, time delay between the hearing of the voice during the commission of the crime and the identification, interviewing ear witnesses, suggestibility and fallibility. It is important to note that Ms Vuyile has known the accused for a period of eight months and would see accused five days in a week.  It can be accepted that Ms Vuyile was familiar with the accused. However, they were not on speaking terms, but she could hear when the accused would speak like she heard him when entering the yard on the 21 st of October 2022. The evidence of Ms Vuyile hearing the accused shouting at the dog to shut up only came out during cross-examination, as such the issue of suggestibility is ruled out. Again at 5am Ms Vuyile saw the accused; this time he was feeding the dog.  She can still remember the type of clothes he was wearing, and it was not the same type of clothes that she saw the accused wearing the previous day. At 6am, again, she saw the accused outside the deceased shack.  She again saw the accused at past seven in the morning, this time accused spoke to her.  She observed that the accused had changed the top that she saw him wearing earlier. At that moment accused informed Ms Vuyile that the deceased is injured knowing quite well that the deceased has passed on.  Accused moved away from the deceased premises towards the direction of his shack.  He came back when members of the community had gathered at his place, he then entered his shack when Ms Vuyile and Mbali were inside. What I do not understand, it is his evidence that when Ms Vuyile and Mbali came back from calling Ms Vuyile’s friends after he informed her about the deceased injuries, he did not enter the house with them, and he remained outside.  When he entered the shack, he touched the deceased and then said that she is cold and has passed away. Ms Vuyile was thoroughly cross-examined by Mr Alberts on behalf of the accused, and I cannot remember a moment where she contradicted herself. The evidence of voice identification, in my considered view, even though she did not see the person who was shouting, it was clear and properly conveyed. There are gaps in between when she could not hear or see of the accused.  This can be attributed by many aspects which are but not limited to the following; That she was in deep sleep not to hear anything and that during that period nothing has happened.  It is her account that on that night she did not consume any liquor. It is also not evidence that Ms Vuyile has a hearing problem.  I observed her as she was testifying and I did not get any indication that she could not hear properly neither did she complain about having a hearing problem, or that she was having trouble in hearing. As such, I can safely say that Ms Vuyile does not have a difficulty in hearing. The State is relying on circumstantial evidence to convict the accused as the State did not lead direct evidence against the accused.  In State v Reddy and others 1996 volume 2 SACR 1(a) at 8(c) to (d) the following was stated: “ In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is  only then that one can apply the oft-quoted dictum in R v Blom 1939 AD 188 at 202-3, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such 'that they  exclude every reasonable inference from them save the one sought to be drawn'.(see also Ntsele 1998 (2) SACR 178 (SCA)) The proven facts in this matter are that: 1.         The accused was on the 21 October 2022 the last person to be seen with the deceased. 2.         The deceased was discovered with a bullet wound to her head on the morning of the 22 October 2022. 3.         Accused informed Ms Vuyile about the injury that the deceased sustained on the morning of the 22 October 2022. 4.         Ms Vuyile went to call the deceased landlady Ms Gladys Kubheka. 5.         When the deceased body was discovered, it was found wrapped with a blood-soaked towel. The Accused raised the defence of alibi, and he could not secure his alibi witnesses to court.  The accused bears no onus to prove his alibi.  Once an alibi is raised the onus is on the accused to prove that it is false beyond doubt. In Maila v the State (429/2022) 2023 ZASCA 3 the Court stated that, referring to Tshiki v the State 2020 ZASACA 92 (SCA): “ [20]    It is trite that an accused person is entitled to raise any defence, including that of an alibi – that at the time of the commission of the crime, they were not at the scene of the crime but somewhere else. They can also lead evidence of a witness(es) to corroborate them on their whereabouts at the critical time. Nevertheless, it is trite that an accused person who raises the defence is under no duty (as opposed to that of the State) to prove his defence. If the defence is reasonably possibly true, they are entitled to be discharged and found not guilty. [21]     The only responsibility an accused person bears with regards to their alibi defence is to raise the defence at the earliest opportunity. The reason is simple: to give the police and the prosecution the opportunity to investigate the defence and bring it to the attention of the court. In appropriate cases, in practice, the prosecution can even withdraw the charge should the alibi defence, after investigations, prove to be solid.” There is nothing gainsay say in the fact that the accused informed the police at the time of his arrest that he was not at the deceased place when the deceased was killed. Despite the alibi witness being accused neighbour, Tshepo, such witness could not be secured to come and confirm the accused alibi.  Given that, I am not going to draw any inferences on the accused failure to call such an alibi witness or witnesses to confirm his alibi. What is important is that when the accused left Matshangane Tavern at 5am, on his own account, Tshepo was not with him.  It is not clear from the accused version for how long he was with Tshepo at Matshangane Tavern. The deceased head was wrapped with a towel which was soaked with blood.  From photo two of EXHIBIT E2 it shows that the deceased bled profusely as whatever was covering the deceased body was soaked in blood.  It is unlikely that an intruder would wrap the person’s head with a towel after shooting at them. In my considered view, whoever wrapped the deceased head with the towel was doing that to stop the deceased from bleeding as it is common cause that the bullet wound was to the head.  It is for this reason that I exclude the presence of an intruder from the evidence. In my considered view that Ms Vuyile evidence, while she is an uncorroborated and a single witness, is clear and satisfactory in all material respects.  It is for this reason that I find the evidence for voice identification to be probable. Ms Vuyile's evidence on the events of the morning at around past seven 22 October is corroborated in all material respects by Ms Kubheka and I find her evidence to be satisfactory. The accused is the last person who was seen with the deceased, he was heard when he was shouting at a dog at 2am, at 5am he was seen when he was feeding the dog, at 6am he was standing outside the shack and at past 7am he made a report of the injury of the deceased. From there the conduct of the accused leaves much to be desired: 1.         He moved away from the scene as if nothing happened to a person who was in a love relationship with him for a period of seven years. 2.         He left the deceased unattended and failed to call the police or the ambulance personnel. 3.         He allowed people who were not staying at his place to access his place in his absence and invade the privacy of his lover’s place. 4.         He shows no emotions despite recently losing his lover. On the other hand, the accused account of events is just a fabrication and lies beyond doubt. He started consuming liquor on the 21 October shortly before 7pm at night until the following morning, on his account, and at around 6am but then he appeared to people as being sober. There is a person who comes to his place to buy puppies whereas he knows that those puppies are not his but belonged to the deceased and are kept at the deceased place. Ms Vuyile is corroborated by Ms Kubheka in that the accused was present at his shack after 7am whereas he maintains that he only arrived there at 9am. There is no evidence that shows that Ms Vuyile had an adverse bias or an interest in this matter.  She did not contradict herself.  She did not contradict herself despite being thoroughly cross-examined by Mr Alberts. Probabilities are that the accused had a fight with the deceased, and he remained at that place until he was seen and heard by Ms Vuyile.  He was never at any stage at Matshangane Tavern where said he slept over there. If there is a possibility that he was at Matshangane Tavern at any stage during the night the probability is that at 2am he was back at the deceased place, also at 5am until the body of the deceased was found. Proven facts indicates that the only person who should be found liable for the killing of the deceased it is none other than the accused. I am satisfied that the State succeeded in proving its case beyond reasonable doubt, and the accused version in so far as it is in contradiction with the State’s version is rejected as false beyond reasonable doubt. The last aspect to be determined by this Court as the accused is charged with the provision of Section 51(1) is to determine whether the murder in casu is planned or premeditated. In my considered view this is not murder committed in a spur of a moment as accused testified that he is not a holder or owner of a firearm.  This means that the accused went out and sourced a firearm to commit this offence. Evidence is not clear as to what time was the murder committed as Ms Vuyile did not hear any gun shots but the defence admitted murder to be committed on the 22 nd of October 2022. Statement which was admitted into evidence as EXHIBIT G by agreement is a statement of Constable Pasha, who never testified, it states that when they arrived at the scene, they found the body of the deceased naked, covered with a blanket. This clearly shows the accused waited for the deceased to go and sleep and then shot and killed her.  The last time that the deceased was seen, she was dressed. I am alive to the contradiction in terms of times from the statement of the Constable Pasha and the declaration of their form at a time when the deceased was declared dead but such discrepancy in my considered view do not have any bearing in the merits of the matter. It is therefore my finding that murder under these circumstances is premeditated.  In the result the following verdict is returned: 1.  Murder read with the provisions of Section 51(1) Act 105 of 1997, accused is found guilty. MOSOPA, J JUDGE OF THE HIGH COURT DATE : 29/11/2024 sino noindex make_database footer start