S v B.B and Another (SS82/2023) [2024] ZAGPJHC 740 (20 June 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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2024 >> [2024] ZAGPJHC 740 | Noteup | LawCite sino index ## S v B.B and Another (SS82/2023) [2024] ZAGPJHC 740 (20 June 2024) S v B.B and Another (SS82/2023) [2024] ZAGPJHC 740 (20 June 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2024_740.html sino date 20 June 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 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG. Case Number: SS82/2023 (1)      REPORTABLE: NO (2)      OF INTEREST TO OTHER JUDGES: NO (3)      REVISED: YES DATE 29 July 2024 SIGNATURE In the matter between: THE STATE and B[...] B[...] ACCUSED 1 S[...] B[...] B[...]                                                                       ACCUSED 2 ## ## JUDGMENT JUDGMENT Noko J Introduction [1]             The first and second accused are arraigned on the following charges, Count 1 Assault of D[...] J[...] B[...] (“ D[...]” ) with intend to cause grievous bodily harm, read with the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997 (CLAA). Count 2 – Child abuse of D[...], Count 3 – Assault of C[...] B[...] (“ C[...] or Late C[...] or the deceased ”) with intend to cause grievous bodily harm, read with the provisions of section 51(2) of the CLAA, Count 4 – Child abuse of C[...]. Count 5 – Rape of B[...] and count 6 – Murder of C[...] B[...], read with the provisions of section 51(1) of the CLAA. [2]             Both accused were appraised of the applicability of the minimum sentence provisions and they confirmed their understanding thereof. The first accused was represented by Adv J Mawila and the second accused was represented by Adv S Bovu. Both accused pleaded not guilty to the charges and their respective legal representatives confirmed that the pleas were in accordance with their clients’ instructions. Background [3]             Count 1 - Assault with intent to cause grievous bodily harm, in that during July 2018 the accused did, unlawfully and intentionally assault D[...] ( a male born on 14 September 2015), with intent to cause grievous bodily harm by pouring him with boiling hot water over him. [4]             Count 2 – Child abuse, in that during the period of 17 November 2020 until 11 May 2021 and or near 6[...] S[...] Avenue, Alberton North, in the district of Ekurhuleni Central, the accused being a parent and/ or guardian and/or other person who has a parental responsibilities and rights in respect of D[...] J[...] B[...] ( a male born on 14 September 2015), and / or care giver and / or a person who has no parental responsibilities in respect of the said child, but who voluntarily care s for the said child either indefinitely, temporarily or partially, unlawfully and intentionally abused the said child, by pouring boiling water over him and / or hitting him with an electrical cord, and / or hitting him with their hands and / rubbing faeces into his body. [5]             Count 3 – Assault with intent to cause grievous bodily harm in that the accused did, during July 2018 and at or near 6[...] S[...] avenue, Alberton North, in the district of Ekurhuleni Central, the accused unlawfully and intentionally assault C[...] (a female child born on 5 November 2018) with intent of causing her grievous bodily harm by hitting her body against the cupboard and/ or throwing her body against a wall and/ or feeding her with her vomits and/ or forcing her to eat her vomits and/ or force her mouth and nose shut after forcing food in her mouth and/ or press on her stomach to force her body to defecate and/ or hitting her with objects and/ or hitting her with a shoe and/ or hitting her with their hands and/ or hitting her with a slipper and/ or rubbing faeces onto her body. [6]             Count 4 – Child abuse, in that on or during the period of and at the place referred to in count 2, the accused being a parent and/ or guardian and/or other person who has a parental responsibilities and rights in respect of C[...] B[...] (a female child born on 5 November 2018) and / or care giver and or person who has no parental responsibilities in respect of the said child, but who voluntarily cares for the said child either indefinitely, temporarily or partially, intentionally and unlawfully abused the said child, by hitting her body against a cupboard and / or throwing her body against the a wall and/ or feeding her with her until she vomits and/ or forcing her to eat her vomits and/ or force her mouth and nose shut after forcing food in her mouth and/ or press on her stomach to force her body to defecate and/ or hitting her with objects and/ or hitting her with a shoe and/ or hitting her with their hands and/ or hitting her with a slipper and/ or rubbing faeces into her body and/ or inserting a finger in her anus. [7]             Count  5 – Rape, in that on or during the period and place referred to in count 1 the accused did, unlawfully and intentionally commit an act of sexual penetration with the deceased, to wit , C[...] (a female child born on 5 November 2018), by penetrating her vagina with his penis and/ or penetrating her anus with his finger without the consent of the deceased and/ or penetrating her vagina with an object unknown to the State. [8]             Count 6 – Murder, in that on or about 11 May 2021, and at or near 6[...] S[...] Avenue, Alberton North accused did, unlawfully and intentionally kill C[...] (a female child born on 5 November 2018). [9]             The State called six witnesses and handed in documentary evidence marked as exhibits A -  V. Exhibits A – E were admitted by the Accused in terms of section 220 of the Criminal Procedure Act 51 of 1977 (CPA). Both accused testified and did not call witnesses. State Case [10]         The State called its first witness, Mr Lungile Ngwenya (“ Mr Ngwenya” )  who testified that he is an Intermediate Life Support Paramedic in the employ of ER24 and had been so employed since 2014 after acquiring his Basic and Intermediate Life Support Paramedic qualifications. On 11 May 2021 ER24 was requested to avail its service in Alberton. Mr Ngwenya proceeded to the accused’s address in an ER24’s ambulance where he found the second accused together with the late C[...] (who was covered in a blanket) lying on the pavement.  He arrived at the scene at approximately 18:10. He then checked pulse and breathing of the late C[...] by sticking ECG stickers on her chest. The late C[...] was not breathing and no pulse was detected. He declared the late C[...] dead at approximately 18:15. He believes that the late C[...] was dead for more than 15 minutes prior to his arrival. [11]         He noted multiple injuries on the body and legs of the late C[...] and then contacted the police who came and took over the scene. The body of the late C[...] would have ordinarily been handed back to the family had there been no injuries noticed on the body by Mr Ngwenya. [12]         He stated under cross examination by counsel on behalf of the first accused that CPR was not administered as it was not necessary since the late C[...] was dead for a while. [13]         The counsel for the second accused informed the witness under cross examination that the late C[...] was not breathing when the accused arrived from work. Further that he summoned the assistance of a passer-by who identified himself as a paramedic who unsuccessfully tried to resuscitate the late C[...]. In response the witness stated that he was not aware of any other paramedic who attempted resuscitation prior to his arrival. Further that their protocol requires that a paramedic is not allowed to leave the scene without handing over the scene to another paramedic or where applicable members of the police service. He also did not notice that the late C[...] had vomited as was alleged on behalf of the second accused. [14]         The state’s next witness was Seargent Mmakgabo Itumeleng Thelma Moloto (“ Sgt Moloto ”) who testified that she is attached to the SAPS and was assisting the late W/O Hlatswayo, the investigating officer of the case. The said late W/O Hlatswayo died during Covid 19. Sgt Moloto stated that at the beginning the docket was classified as an inquest. Further that the second accused made a statement on 17 May 2021 which was handed up as exhibit and marked G. The said statement was made freely and voluntarily to W/O Hlatswayo. The second accused subsequently made another statement freely and voluntarily on 21 May 2021 which is marked exhibit H for the record. [15]         Sgt Moloto stated further that the first accused also made two statements freely and voluntarily on 21 and 27 May 2021 respectively and marked Exhibit J and K respectively. She further stated that strangely the first accused behaved out of the ordinary in the sense that unlike other parents in similar situations she was not crying at the time when she made the statement. The docket was subsequently transferred to the Family Violence, Child Protection and Sexual Offences Unit (‘ FCS ’) for further processing. [16]         Under cross examination by the counsel for the first accused the version of the first accused was put to her that had there been a proper investigation made, it would have established that she did not do wrong and would not have been charged. The witness replied that W/O Hlatswayo only requested her to assist in obtaining the statement and he (W/O Hlatswayo) and not her would conduct the necessary investigations. [17]         The witness repeated under cross examination by counsel on behalf of the second accused that the first accused did not appear distraught when making the statements. He stated, however, that the second accused informed her that the first accused was abusive towards the late C[...]. [18]         The next witness called by the State was Dr Tinyiko Nkondo who testified that she has MB, ChB, Diploma in Medicine Pathology and Fellowship in Pathology from College of Medicine in SA. She has been practising as a pathologist from 2007 to date. According to Dr Tinyiko Nkondo’s (“ Dr Nkondo or the pathologist ”) testimony the late C[...] died as a result of the pressure exerted on her neck structures which was consistent with throttling. She submitted a postmortem report marked exhibit D which was accepted without any objection from the defence, wherein she identified a list of injuries listed below. 18.1.     Multiple hypopigmented scars consistent with the injuries due to burns. The scars were more than two months old. 18.2.     Abrasions on the different areas on the head consistent with an impact with a blunt object. The said injuries were more 2 days old prior the death. Abrasions on her forehead, right (and left) hairline, right cheekbone and nose. All these abrasions were consistent with an impact with a blunt object on the respective area. The abrasions were more than 2 days old prior the late C[...]’s death. 18.3.     Reddish bruises on the forehead, chin, both cheeks and left jaw. These injuries were inflicted between few hours to 2 days before death and were consistent with an impact with a blunt object. Yellowish bruises over her left cheek bone, right cheek and the angle of the left jaw which were also consistent with an impact with a blunt object and were inflicted between 7 to 12 days prior the date of death. 18.4.     Multiple abrasions over the right antero-lateral aspect of the neck which are consistent with throttling ending up in the death. The abrasions were fresh and inflicted less than 2 days prior to the death. There were also yellowish bruises on the anterior and reddish bruises on the lower aspects of the neck which were consistent with an impact with a blunt object. The bruises were inflicted few hours to two hours prior to the death. 18.5.     Multiple reddish bruises on the left chest wall and abdomen which were inflicted few hours and up to two days prior death and consistent with an impact with a blunt object. Yellowish bruises over the left chest wall and upper left chest which were inflicted 7 to 12 days before death and consistent with an impact with a blunt object. 18.6.     Multiple reddish bruises on the left upper back inflicted between few hours and 2 days prior to the death. Yellowish bruises on the upper back inflicted between 7 and 12 days prior the death. Diffuse red purplish bruising on the lower back inflicted 2 to 4 days prior to the death. Yellowish green bruise on the lower back which were inflicted between 5 and 6 days prior to the death. All these injuries were consistent with a blow with a blunt object. 18.7.     Multiple reddish bruises on the right shoulder, anterior-lateral aspect of the right forearm, back of the right hand and abdomen which were inflicted within few hours and two days before the death. Yellowish bruises on the upper back inflicted between 7 to 12 days prior to death. Diffuse red purplish bruising on the lower back which were inflicted 2 to 4 days prior to death.  Yellowish green bruise on the lower back inflicted between 5 to 6 days prior the death. All these injuries were consistent with a blow with a blunt object. 18.8.     Multiple red bruises on the right shoulder, anterior-lateral aspect of the right forearm, on the back of the right hand and over the posterior-lateral aspect of the left arm which were inflicted between few hours and two days prior to the death. Diffuse yellowish bruising on the left arm and forearm which were inflicted between 7 to 12 days prior to death. These injuries were consistent with an impact with a blunt object. 18.9.     Multiple red bruises on the right shoulder, diffuse reddish bruising on the antero-lateral aspect of the right forearm, diffuse reddish bruising on the back of the right hand and reddish bruises over the posterior-lateral aspect of the left arm. All which were inflicted between few hours and two days prior to death. Diffuse yellowish bruising on the left arm and forearm which were inflicted between 7 to 12 days prior to death. All these injuries were consistent with an impact with a blunt object. 18.10. Diffuse red bruising of the left thigh and leg anteriorly, multiple small abrasions on the left thigh and leg anteriorly, multiple small abrasions on the right thigh and leg anteriorly, abrasions on the medial aspects of the right and left ankle, reddish bruises on the left foot and back of the left knee. All these injuries were inflicted within 2 days of the death. Yellowish bruises on the lateral aspect of the left ankle which were inflicted 7 to 12 days prior to the death. All these injuries were consistent with an impact with a blunt object. 18.11. Diffuse scalp contusions (internal bleeding), swelling of the brain, lever, tongue and pharynx were pale, contusion over the larynx on the left, focal contusion over the right second and fifth intercostal space. 18.12. Bruises over the posterior fourchette and tear on one o’clock position of the hymen which is an indication of penetration of the vagina with an object, being possibly a finger or penis. The tear was fresh and no clefts were visible which will indicate old injuries to the vagina. [19]         Dr Nkondo testified further that the nature of the injuries could not have been due to normal falling of the late C[...] who may have been learning to walk but the late C[...] was subjected to a blunt force trauma or impact and the injuries cannot be attributed to a medical condition. [20]         The witness stated under cross examination by the counsel on behalf of the first accused that the injuries could have been caused by hitting with a shoe and also being pushed onto a wall. Further that due to the nature of injuries on the neck structures death would have inevitably ensued within 20 seconds to 5 minutes due to lack of supply of oxygen to the brain. She persisted that the injuries, like multiple abrasions and bruises, were not as a result of a medical condition. She denied the suggestion that injuries on the neck may have been caused by a shoe being pressed against the neck. [21]         The counsel for the second accused opted not to cross examine the witness or  put the second accused’s version to the witness. [22]         The next witness was Nursing Sister, Chistina Rollin, who testified that she examined D[...] two months on 21 July 2021 after the passing of his sister, the late C[...]. She noted multiple scars on his left arm which were possibly due to burns. She further stated that D[...] exhibited signs of Scatolia though could not link it to any medical condition D[...] may have had. The witness was not cross examined. [23]         The next witness was D[...] B[...] who was 2 and half years old at the time when the deceased passed on. D[...] testified through an intermediary  in terms of section 170A of the CPA and the proceedings were conducted behind closed doors in terms of section 153 of the CPA.  He testified that both accused were forcing the deceased to eat by pushing the bottle of milk into her mouth. In the process both accused placed their hands on the deceased’s mouth forcing her to swallow whatever she was being fed.  He was instructed to hold down the deceased’s feet and could not have ignored the instructions as he was threatened with assault by his father. [24]         He further recalls that the first accused burned him with boiling water on his left arm whilst he was playing with his yellow toy car. He believes that the burning was not an accident but was intentional. The second accused had also smeared him with faeces which made him feel bad. [25]         He also remembers being assaulted by his father, the second accused, with an electrical cord on his back in the presence of the first accused. The deceased was also subjected to the same treatment by the first accused on three occasions and all of them were in the presence of the second accused. [26]         He stated further that he recalls the second accused throwing the deceased on to the cabinet in the bedroom and she cried as a result thereof. Both accused also hit the deceased with a dark orange boot on her back. First accused also forced bottle of milk into the deceased’s mouth on the day she passed on. [27]         He stated that he was not excited to be reunited with his parents and in contrast C[...] appeared to have been excited. [28]         During cross examination by the counsel for the second accused D[...] persisted that both accused pushed the bottle hard into the late C[...]’s mouth. This will also be at night when the accused is back from work. He denied the allegations presented by the second accused that he was not present when the first accused was placing the cable on C[...]’s neck. He persisted with his evidence that indeed the first accused pressed the cable on the deceased’s neck and the second accused was present in one of the instances when the assault took place. [29]         The state’s next witness was Mr Thapiwa Gwande (“ Mr Gwande ”) who testified that he is the social worker (with registration number 10-45208) in the employ of social welfare organisation called Child Welfare South Africa, carrying its business in Alberton. He stated that he was involved in the removal of both D[...] and the late C[...] from the accused during December 2018. He was also involved in the re-unification process of both children with the accused during November 2020. [30]         In his involvement to assess whether it was apt for the children to be re-united with the accused he had to assess whether accused are free from drugs, have attended a mandatory parenting skills training programme, have financial means to receive and take care of the children and further that the home environment is conducive for the return of the children.  He reported that the accused satisfied the said requirements. [31]         Mr Gwande stated further that ordinarily his office requires that he conducts home visits every month after the re-unification with the children’s parents. In this case the monthly visits could not be maintained as there were no resources and as such, he could only visit every three months. This did not last long as he was subsequently dismissed from employment due to insubordination. [32]         During his testimony he referred to his report which was marked exhibit Q which was prepared for the children’s court before the re-unification. The said report stated that the children could be re-united with the parents. He also referred to the court order marked exhibit R which ordered the re-unification of the children with accused on 24 November 2020. [33] The next witness was Sergeant Vukeya who testified that he is attached to SAPS. This case was assigned to him during July 2021 to continue with the investigation. After perusing the postmortem report in the docket, and having looked at the statements filed, photos of the deceased and the forensic assessment report of D[...] compiled by Captain Botha [1] he concluded that the accused may have committed offences and he then decided to arrest both accused. [34]         The witness stated under cross examination by the counsel of first accused that there was no case opened against the second accused regarding the abuse of the first accused. Counsel for the first accused informed the witness that the first accused did not open a case against the second accused as she feared for her life to which he retorted that he does not have a comment. [35]         The state then closed its case. Evidence of the first accused. [36]         The first accused, B[...] B[...], testified that she is a biological mother of D[...], C[...] and T[...] B[...] and is married to their father, S[...] B[...], the second accused in this case. [37]         The first accused testified further that D[...] was taken away from the accused on the first occasion after she had a verbal confrontation with the second accused in the car at Alberton Mall. Pursuant to the verbal exchange with the second accused, the first accused stormed out of the vehicle leaving the child with the second accused. The latter followed her and left the child alone in the car. The security guards at the centre apparently called Social Development Department and D[...] was then taken away from them. [38]         The first accused stated further that in respect of the second removal, she was together with the second accused taking drugs whilst drinking at the flat. She believes that her drink was spiked. C[...] was crying incessantly and the caretaker of the flats complained about the noise. The second accused then left. Both C[...] and D[...] were subsequently removed from the accused for a period of two years and were placed in the temporary care of the second accused’s sister, S[...] B[...]. [39]         The first accused testified further that the second accused abused the children in the manner set out hereinafter, namely, assaulting the late C[...] with a shoe on her hands and fingers (including throwing her on to a cabinet) after accusing her of not greeting him as her father. Secondly, when the late C[...] vomits the second accused will force her to eat her vomitus and despite her effort to stop him, he replied that late C[...] must eat and he would not give in to her attitude. [40]         Though she could not give an indication of exactly the time at which the late C[...] passed away, the first accused stated that the late C[...] chocked from her own vomitus whilst in the bedroom. The second accused was at work. According to her explanation the deceased died from suffocation from her own vomitus, after she fed her morvite and milk during the morning. [41]         Further that the late C[...] was already vomiting for a week at that time and the second accused was aware thereof. There were no efforts taken to seek medical treatment as the first accused was, first , scared of further possible abuse by the second accused, secondly , scared of the prospects of the children being taken away from them and thirdly , scared of losing out on the benefit from the second accused financially who was taking care of her and the children, if her get arrested. She could not take the late C[...] for medical treatment as she was concerned of the very same reason that the children would be taken away. This was despite the fact that she was aware that the late C[...] was experiencing pain. [42]         The first accused stated further that she could not report this to her parents as there was no bond between her and her parents. This sour relationship was aggravated by the second accused’s disrespectful attitude towards her parents. [43]         She confirmed that she notified the second accused about the passing of the late C[...] via short message service (sms). Though not formally having disputed the pathologist report, that she died from throttling, she testified that she does not agree therewith. [44]         She testified further that she was shocked to hear that the deceased’s vagina was penetrated as the child was normally with her, D[...] and T[...] and neither of them could not have penetrated the late C[...]. [45]         Her efforts to dissuade the second accused not to insert his little finger in the anus to induce the late C[...] to defecate did not reach any objective. [46]         During cross examination by counsel on behalf of the second accused the first accused confirmed that during the verbal exchange at the mall as set out above she alighted as she did not want the child to witness possible physical fight between the second accused and herself. She did not leave the child alone as the second accused was in the car with him. She stated further that the second accused was verbally abusive towards her and often physical. The assaults by the second accused started three months after their relationship and it became worse after the children were born. The second accused would generally verbally scold D[...] and in contrast he would be physical when it comes to C[...]. The first accused will always try by all means to enter the fray but was pushed away by the second accused.  The injuries which appeared on the body of the deceased were, according to her, all caused by the second accused including on the neck which were caused when he feeds the late C[...]. It is clear that he hated the late C[...] wholeheartedly, so she proceeded. [47]         The assaults were never reported to the first accused’s parents or her brother and criminal charges were never preferred as the second accused will always proffer an apology for his deeds. She was also dissuaded to report as she was concerned that once a criminal case is opened there was a likelihood that the children may be taken away from them and the family also depended on the income from the second accused who may be arrested once charges were preferred against him. [48]         She stated further that ordinarily the parties alternated in the house’s chores relating to bathing of the children and preparing of supper for them. The involvement of the second accused was normally after work in the evening. [49]         The first accused stated further that the second accused often pushed the late C[...] against the cupboard and she try to stop the second accused who will respond by saying that the first accused was too soft with the children. She confirmed  further the allegations by D[...] that at times the second accused would press late C[...] on her tummy with his hands and states that he is assisting her with stooling to which she responded that it is unreasonable for the second accused to expect the late C[...] to stool every day. [50]         At some stage the deceased had fractures on her hand and leg. The first accused alleged that the deceased was limping but she did not appear to be in pain. She suggested to the second accused that the late C[...] should be taken for medical attention and his response was that they should give her sometime maybe she would be fine. Due to lack of improvement, he relented and the late C[...] was taken to hospital after three days. Her recollection with regard to how the injuries were sustained is that the second accused was with late C[...] in the bathroom and when they came out, she noted that the late C[...] was limping though not crying. The second accused did not explain as to what transpired. [51]         She conceded under cross examination by the State that few weeks before C[...]’s death she informed the second accused that she is fed up with the late C[...] as she was eating very slow but disputed that she pushed milk bottle into the deceased mouth as was alleged by D[...]. She further denied that the spillage of boiling water on D[...] was intentional and consistent herewith she proceeded to take D[...] with the second accused to the hospital where she frankly informed the medical staff of what transpired. [52]         She stated further under cross examination that the second accused was not at home on the day when the late C[...] died. It was in the morning when she noted that the late C[...] had vomited and the vomitus were in her mouth. She realised when she tried to pick her up that she was no longer breathing and, in this regard, she denies the evidence put forward by Dr Nkondo that the late C[...] died as a result of throttling. [53]         On being confronted by the State for the rape of the late C[...] by the second accused she retorted that she was not aware that what the second accused did was rape but she continuously pushed the second accused hands at all times when he put his finger into C[...]’s anus. [54]         The first accused then closed her case. [55]         The second accused opened his case and testified that both first accused and himself were staying together with her in-laws in the property which was rented out to them. The relationship commenced in 2012. He only started using drugs around 2013 and was under the influence of some residents at the flats he occupied with the first accused. At the time when the children were taken away from them, they were already using hard drugs, crystal meth and cat together with alcohol. [56]         He was not at home and been away for two weeks at the time when the children were removed from them for the second time. He went away for two weeks and on his return the first accused stated that she overdosed with the drugs and was admitted into a hospital. They had to stop taking drugs and were allowed to visit the children once a week. They were ultimately allowed to have the children back with the assistance of a social worker, named Ms Dina Bosch. [57]         On the day of C[...]’s death he was at work and was notified by the first accused that she passed on. His employer took him home where he found the first accused seated outside the house with the late C[...]. He took the late C[...] and ran outside the yard and screamed for help. Some passer-by came forward and stated that he is a paramedic and offered to assist by attempting to resuscitate the late C[...] but to no avail. The late C[...] vomited at the time when she was being resuscitated. He took the mattrass and a blanket from the house and covered the late C[...] at the pavement. The paramedic left upon the arrival of the ambulance at the scene. He made inquiries with the first accused as to what happened to the late C[...] and the first accused was not forthcoming with any answer. [58]         He denies ever putting his finger in the late C[...]’s anus in an endeavour to assist her to stool. He further stated that he was shocked to hear from the pathologist’s evidence that late C[...] was penetrated vaginally. He denies that he was at home at the time when C[...] got burned with boiling water by the first accused. He further denies allegations made against him by both D[...] and the first accused. [59]         He was chased out of the house by the first accused’s parents after the death of C[...] and had to move in with his employer. He was subsequently dismissed from employment and moved into a rehab centre where he has been staying since. [60]         He stated under cross examination by the counsel for the first accused that he became aware of the injuries on the late C[...]’s body three to four days prior to her death when giving her a bath and his attempt to get explanation from the first accused bore no fruits. He denied ever penetrating C[...] at all. [61]         He conceded under cross examination by the State that at the time of the first removal they were taking drugs and were ordered not to have access to the children for a period of 3 months and that they should be clean from drugs. They indeed stopped using the drugs but relapsed after the children were returned. [62]         He was also asked about the injuries and he repeated his stance that he became aware of the injuries few days before her death.  He is aware that the late C[...] was taken to hospital after the fracture of the leg where she was fitted with backslap which he personally removed without medical advice after it became loose. He is unable to account for the injuries as they happened when he was at work and the first accused was unable to provide any explanation.  He however stated that those injuries which were on her head were not there in the morning when he left for work on the day she passed. [63]         He admitted that he was negligent as a parent and exposed the children to an environment which was not conducive for their rearing. He however conceded that the use of drugs should not assist a person to avoid his responsibilities and those using drugs should be dealt with in terms of the law. Though he is forgetful he denies that he ever penetrated his own child either through her anus or vagina. The second accused then closed his case. In closing State [64]         In summation the State submitted that D[...] still had vivid recollection of what transpired on the date when he was burnt with boiling water. He denies the explanation proffered by the first accused that it was an accident. The State submitted that in view of the fact that both accused were home on the day when he was burnt with boiling water, they must both be found guilty. The injuries and abuse suffered by D[...] and the late C[...] at the hands of the accused lend credence to the version presented by D[...]. Hence the charge in count 1 is sustained and both accused should be found guilty as charged. [65]         In respect of count 2 D[...] also recalls that the second accused assaulted him with electric cord after he jumped through the window twice. He was also threatened with assault if he could refuse to hold C[...]’s legs when being forcibly fed. He was smeared with faeces by the second accused. He was also hit by the second accused on his buttocks with his hand. The absence of J88 (as he was examined only after few month subsequent to the death of C[...]) cannot be invoked as a basis for arguing that D[...] was never assaulted.  The second accused must both be found guilty as the first accused failed to report the abuse and as such should be found guilty. [66]         With regard to count 3 and 4 the State submitted that D[...] gave a comprehensive account of what transpired and the injuries sustained by D[...] were acknowledged by the first accused though attributing blame to the second accused. She nevertheless failed to seek medical intervention, or report to the police and/ or social worker for her own reasons where were not explained before the court. [67]         The denial by the second accused of the abuse or even acknowledgement of the existence of the abuse and injuries leave more to be desired, prosecution submitted. His stance that the scars and injuries just teleported on the date of death is unfathomable.  He has already contradicted himself that he never witnessed any abuse by the first accused but took a volte face stance later and stated that he once saw the first accused pushing the late C[...] as a result of which she suffered injuries on her back. He has never bothered to report such abuse and should be found guilty as a result thereof. [68] Regarding the charges of rape and murder the State relies on circumstantial evidence. The test has been clearly set out in R v Blom . [2] The evidence placed before the court by Dr Nkondo and the conclusions thereof were not challenged. The versions of the accused were not put to Dr Nkondo either. Failure by the cross examiners cannot be an excuse. [3] The accused could not gainsay the evidence regarding the recent vaginal penetration noted by Dr Nkondo, the injuries on the posterior fourchette as well as the tear found at one o’clock position of the hymen. [69]         It has been demonstrated that the injuries sustained were suffered during the period when the children were under the supervision and care of both accused. They were aware of the injuries including the fracture of the arm and the leg. The backslap was removed by the second accused and despite being aware that the deceased was still limping he failed to take her for medical attention. The photos and report by Dr Nkondo present evidence of brutal abuse and assaults and set out the time at which the assault were unleashed. The said evidence was not challenged in any way. [70]         The late C[...] was under care and supervision of the first accused when she died and the first accused was unable to challenge the cause of death as stated by Dr Nkondo and this works against her. In fact, Dr Nkondo’s testimony was primarily that the death could not have been due to medical condition. Dr Nkondo’s evidence of the injuries points to the direction that they were caused by both first and second accused. They both were aware of the injuries inflicted by the other and both failed to report same with the relevant Social Development Department or the police. They both had opportunities to cause the injuries and in the absence of an explanation which is possibly true an inference should be drawn that the death was due to the ongoing abuse and assaults by the accused. [71] The Stare’s counsel referred to authorities which should guide the court in coming to a decision in criminal matters. Importantly, that although the State must prove its case beyond reasonable doubt ‘… the accused is entitled to be acquitted if there is a reasonable possibility that an innocent explanation which he has proffered might be true”. [4] Further that the court should have regard to all evidence presented by the parties whether the decision is to convict or acquit.  Absent explanation from the accused the court is left with no other option but to convict the accused. Submission - First Accused . [72]         The counsel for first accused contended that D[...] was not yet three years old at the time when the alleged offences were committed and he was six years old at the time when he testified. As a single witness his evidence should be viewed with caution.  The room in which they were at the time when D[...] was poured with boiling water was small and the first accused tripped on her way to pour boiling water into the cups which were on the table. The first accused was also injured in the process and was frank in explaining what transpired to the hospital’s staff. In the premises the accused should not be found guilty of count 1. [73]         Count 2 appears to be a duplication of count 1 which relates to the late C[...] being burned with boiling water. Splitting of charges is proscribed in our law and one count should therefore be quashed by the court as it is clear that the evidence to be led in respect of one count would be the same as the evidence regarding the other count. [74] The counsel for first accused submitted further that Count 3 and 4 are duplicated charges and should not be allowed to stand. In any event the first accused denies the allegations against her. She further stated that some of the allegations [5] were correct, that abuses and assaults were committed by the second accused. She was also subjected to abuse, including physical abuse by the second accused. [75]         With regard to Count 5 of rape, the first accused’s counsel submitted that the State’s case is based on circumstantial evidence and there is no direct evidence presented to prove the crime set out in this count. It is noted however that indeed the second accused used his little finger to induce defecation, the first accused was aware and tried to stop him but she was not aware at that time that it was an offence. [76] With regard to count 6 of murder the evidence of D[...] is that both his parents were responsible for the death of C[...] as they strangled her. The first accused testified that the second accused was at work and she disputes that the cause of death was as demonstrated by the pathologist and contends that late C[...] died of a medical condition. The evidence of D[...] as a minor should also be treated with caution. It was held in R v Manda [6] that the evidence of the “… children can be attributed to their imaginativeness and suggestibility…” hence their evidence must be approached with caution. Submissions - Second Accused. [77] Counsel for the second accused submitted that whilst statements taken at the initial stage of the cases are important one should not be perturbed by contradictions and lacking in some respects. This may be due to various variables including but not limited to translation or interpretation by those to whom the statements are made being member of SAPS. Counsel quoted S v Xaba [7] . The statement made by the first accused states that the late C[...] was sick for 3 days preceding her death and when she asked the late C[...] what is wrong she will point at her tummy. [78]         The counsel for the second accused submitted further that it is trite that the State has an obligation to prove guilt of the accused beyond reasonable doubt. Even if the evidence of the accused appears to be suspicious, he must be acquitted if the state has failed to discharge its obligation of proving guilt beyond reasonable doubt. In addition, that where the version of the accused in reasonably possibly true he must be acquitted. [79]         There is contradiction with what transpired on the date when D[...] was burned with boiling water. The second accused’s evidence was that he was at work and, not at home braaing meat at the time when he was burned. The late C[...] was in fact taken to hospital by an ambulance and not by himself. If as it is alleged that he was braaing meat no evidence was presented to demonstrate his role to justify that there was common purpose with the first accused. To this end the requirements for common purpose have not been satisfied and the accused should be acquitted in respect of count 1. [80]         The aforegoing should also apply with regard to the charge under count 2 as the State did not present any evidence of the injury which D[...] suffered from allegedly being assaulted by the second accused with an electric cable. The injuries identified by the pathologist were caused whilst he was at work and he could not receive any explanation from the first accused. The evidence presented by the first accused or D[...] is riddled with contradictions and the court should not accept either of their versions. To this end he must not be found guilty. In any event, counsel continued, evidence of the first accused about the second accused is not admissible against the second accused unless the latter confirms same. [81]         The second accused disputed ever putting his finger in C[...]’s anus and this being the evidence of the first accused it cannot be used against the second accused until admitted by the latter. The second accused must also be given benefit of the doubt since the first accused had despite the knowledge of penetrating the deceased anus failed to lay the criminal charges against the second accused. In this regard count 5 of rape is unsustainable against the second accused. [82]         In relation to count 6 the counsel submitted that it is common cause that the second accused was at work when the late C[...] passed. The evidence of D[...] is that the first accused had on several occasions placed a cable on the deceased neck. The pathologist also alleges that the deceased died as a result of throttling. There is no evidence pointing to the second accused in relation to the crime of murder. [83]         Under cross examination by the counsel for the first accused the second accused persisted that he was not aware of the injuries he was showed on the photographs taken of the deceased body at the scene. But he did ask the first accused who returned no clear answers thereto. He admitted, however, that he was negligent in leaving the children with first accused who was intoxicated during December 2018 when he left for two weeks. [84]         In addition, he denied that he abused D[...] and/ or C[...] and/or the first accused. He believes that the first accused harbours resentment towards him hence she creatively imagined the charge of putting his finger in the anus of the late C[...]. He did not ask the first accused as to what happened which led to the death of the C[...] and still could not get any answer. [85]         He admitted under cross examination by the State that though they were clean from drugs when the children were returned, three months later, they relapsed. The drugs will make him feel energetic, not getting hungry, or sleepy and make him able to participate in sexual activities without inhibitions. His explanation for not reporting the abuses by the first accused to the social worker was because they fought hard to have the children back and it would pain him much if they were taken away. He further stated he has never witnessed the abuse by the first accused but later he recanted when confronted with the photos and then said that the first accused did push the late C[...] hard and she was angry at her slow eating. He could not react to the evidence given by Dr Nkondo on the injuries identified on the body of the late C[...]. [86]         He would normally bath the late C[...] but did not do so in the week prior to her death though he saw her undressed 3 or 4 times in the week prior to her death. Just like the first accused there was no clear account why the late C[...] was underweight. He says he was not aware and the first accused stated that it is because she refused to eat. [87]         When asked by the court he stated that he would not have raped his child even when he was high. Legal principles and analysis. Count 1 [88] It is settled in our jurisprudence that the State bears the onus of proving the accused’s guilt beyond reasonable doubt and the corollary is that the accused is entitled to be acquitted if it is reasonably possible, that he might be innocent. [8] The accused further bears the onus to demonstrate that the explanation proffered is true. The court may however not convict even if the explanation is improbable instead such an explanation should be false beyond any reasonable doubt. [9] The court should consider the evidence in totality and not in a piecemeal fashion. [89]         It is also trite that where the version presented by the accused is reasonably possibly true then court should be inclined to acquit the accused. In respect of count 1 the first accused explained that she tripped on the toys of D[...] and accidentally poured boiling water on him. The first accused further stated that she also got burned in the process. D[...] testified that indeed he was playing with his toys but believes that the conduct of the first accused was with an aforethought. D[...] failed to put forward basis for believing that it was intentional. The first accused argued that her conduct of taking D[...] to hospital and also having frankly explained to the medical staff what transpired is consistent with someone who did not have intention to harm D[...]. I find that the explanation by the first accused is reasonably possibly true and, in the premises, I return the finding of not guilty. [90]         It should follow that the same count would not hold in respect of the second accused whose accusation of guilt is predicated on the contention that he is jointly to blame with the first accused. Count 2 [91]         D[...] testified that he was beaten up by the second accused with an electric cable for having jumped out of the window. It is noted that generally the evidence of a single witness should be viewed with caution. In this instance it is even worse that the witness is a child whose evidence may at times be prone to suggestibility and creativity. The witness did not appear to obtain a cue from the questioning from the State to provide answers or guided in providing certain responses and to this end his evidence was beyond question. This is despite the fact that the incident upon which the charge is based occurred a while ago. D[...]’s evidence is corroborated by the first accused. [92]         On the other hand,  the second accused proffers just a denial as if a parent may not discipline his child even on the face of corroboration of the accusation by the first accused. The second accused having had an opportunity to cross examine both D[...] and the first accused, they both remain steadfast in their stance that second accused did assault D[...]. I am persuaded that this count is sustained and therefore find the second accused guilty for relating to hitting D[...] with electric cord. Evidence relating to hitting D[...] with fists and rubbing him faeces is found not to be conclusive. [93] The State has submitted that the first accused had by her conduct made herself a candidate to be found guilty as an accessory after the fact. Ordinarily the accused should be made aware of the competent verdicts. [10] The Appellate Division held in Mwali [11] that a conviction on a competent verdict without the accused being warned beforehand is not necessarily fatal. A critical consideration is whether there was a prejudice visiting the accused.  In this case the accused were represented by counsels I see no basis that such prejudice existed and in any event no argument was raised in this regard. For a party to be found guilty of being an accessory is on the basis that she protects the perpetrator or the accomplice. The first accused stated that she could not report the second accused as she would have lost on the financial support if the second accused is arrested. This motivation fortifies the stance that the first accused was aware that the conduct of the second accused was wrong. [94] Notwithstanding the aforegoing it was held in Barnes [12] that an omission may lead to accessory after the fact if there is a legal duty upon the accused to act positively. In this instance the State has demonstrated that there are obligations on the first accused in terms of the Children’s Act [13] to protect the children and the accused have further stated that they are parents and responsible for the children who were always with them.  The first accused would still be found guilty even if she were to claim omission on her part. To this end I return a finding that the first accused is guilty as accessory after the fact. Counts 3 and 4 [95]         Counsel for the first accused contended that counts 3 and 4 amount to duplication of charges and one should not be allowed to stand. [96] The common law rule against duplication of convictions is predicated on the understanding that the accused may be convicted and punished unfairly on the basis of many convictions which amount to one. The Appellate division held in Kuzwayo [14] that in the application of this rule common sense and fairness should prevail. The two tests were developed, namely, single test and evidence test. [15] It was held almost a century ago in Johannes [16] that `         “It seems to me that the court can safely lay down that under certain circumstances both these tests or the one or the other, may be applied, viz., the test of whether two acts are done with a single intent and constitute one continuous criminal transaction and the test as to whether the evidence necessary to establish one crime involves proving another crime.” [97] The authors of Commentary of the Criminal Procedure Act [17 ] stated that; “ where the criminal conduct of an accused is covered by definitions of more than one offence, fairness and common sense may dictate that he be convicted of one offence only.” In addition, that: “ If the evidence that is necessary to establish one of the charges at the same time confirms the other, then there is only one offence and duplication is impermissible”. [18] [98] The SCA in BM [19] held that the various tests are just guidelines and in order to determine if there is improper splitting of charges a court should adopt a common-sense approach in light of the fundamental requirement of fairness to an accused. [99] Against the backdrop of the legal principles enunciated above, it is axiomatic that the accused’s impugned conducts in both counts are as similar and what differs is the legal provision under which the offence resides. The offending conducts which makes the two counts different is that in contrast to count 3 the State has added in count 4 the conduct of inserting the finger into C[...]’s anus. To this end I find that evidence intended to prove count 4 would be the same as evidence required to prove count 4 except the offence of inserting the finger into the anus of the late C[...]. [20] [100]     D[...] testified about the second accused throwing the late C[...] against or onto a cupboard, forcing C[...] to eat her vomitus, forcing food into her mouth and closing her mouth to force her to swallow, hitting her with a shoe, and feeding her until the late C[...] vomits, pressing or pushing hard the late C[...]’s stomach to induce defecation. D[...] had despite her age withstood the cross examination by the counsels of both accused and was steadfast about the version he presented to court. He made a good impression to court and his testimony was reliable and he was credible. [101]     Some of the offending conducts in the charges were corroborated by the accused against each other and were also cross examined by each other through their respective counsels. The first accused contended that the second accused did abuse the late C[...] and did throw C[...] onto a cabinet. The second accused also stated that first accused was abusive towards the children even though his earlier testimony was that he has not witnessed any abuse of the children by the first accused. Besides the aforegoing their versions were just to deny, without more, the evidence presented by D[...]. [102]     The fact that both accused were able to cross examine each other would take care of their counsels’ contentions that evidence against each other should be disregarded. In any event upholding such a contention may not be in the interest of justice. [103]     In the circumstances I find that in accordance with rule against duplication of conviction that only count 4 will be considered and count 3 would not stand. I further find accused 2 guilty as charged under count 4 for the abuse of the C[...] by throwing her body against the cupboard and both accused of feeding the late C[...] with her vomits and forcing her to eat her vomits and force her mouth and nose shut after forcing food in her mouth. Count 5 -  Rape [104]     The State submitted that the charges in respect of both counts 5 and 6 are based on circumstantial evidence. The locus classicus which elucidated legal principles underpinning consideration of circumstantial evidence is R v Blom in terms of which the inference to be drawn should to the exclusion of the others. [105]     The test to determine and evaluate circumstantial evidence as set out in Blom where the cardinal rules of logic applicable are two-fold, first, the inference sought to be drawn  must be consistent with the proved facts. If not, then inference cannot be drawn. Secondly, the proved facts should be such that they exclude every reasonable inferences from them, save the one sought to be drawn. If they do not exclude other reasonable inferences there must be doubt that the inference sought to be drawn is correct. [106]     The facts in support of the rape charge were presented by Dr Nkondo who described the vaginal penetration with an object which could even be a penis or finger.  Further that there were bruises over the posterior fourchette and a tear on one o’clock position of the hymen. The tear was still fresh with no clefts which could have indicated that it was old. [107]     Both accused admitted that the late C[...] was in their care since being re-unified with them. The accused were required under the circumstances to put forward evidence to gainsay the evidence presented by Dr Nkondo.  The first accused focused during cross examination of Dr Nkondo only on what may have caused the death as dealt with below and not to challenge the evidence of rape. The first accused further conceded that without the assistance of an expert from the accused’s side it would not be easy to locate or punch holes in the evidence of Dr Nkondo. He further conceded, with boastful posture, they were taking meth and crystal which had effect of making him forgetful and indulging in sexual acrobatics and had sexual urges without inhibitions. [108]     The second accused on the other hand chose not to cross examine Dr Nkondo which therefore left her evidence unscathed. [109]     Due to the thin cross-examination or absence thereof, the court would not have managed to identify facts to demonstrate that Dr Nkondo’s evidence is reproachable and further easily locate possible other inferences which could be drawn from the facts presented. Based on the facts alluded to above I find that there are no other inferences which can be drawn to dispel the conclusion that the accused should be found guilty of the charge of rape of C[...] by penetrating her with an unknown object. Count of murder [110]     The factual background and the reasoning with regard to the count of murder are congruent with facts set out under the count of rape above. Dr Nkondo presented glaring and comprehensive evidence on the nature of injuries painting a traumatic route which the late C[...] travelled in her short encounter with life. The injuries identified by Dr Nkondo are found to be consistent with an impact of a blunt object. Every part of the body of C[...] was subjected to inhuman brutality of untold proportion. The injuries are listed above and need not be repeated again except to mention that the death was caused by throttling of the innocent late C[...]. It was also established that the late C[...] was under the care of both parents and has been so since the re-unification. [111]     As set out above the second accused chose not to challenge the evidence presented by the expert witness. The accused had the opportunity, were on drugs and had a terrifying and unhealthy environment for the children. Second accused has on several occasions during his testimony stated that he was negligent and irresponsible. [112] The first accused stated in her testimony that she quarrels with the findings of the pathologist as she believes that the cause of death of D[...] was as a result of asphyxiation and this is unfounded and predicated on an uninformed guess. There is a plethora of authorities stating that “ Failure to cross examine … therefor prevent a party from later disputing the truth of the witness’s evidence” . [21] In addition, her version was not put to Dr Nkondo and as set out by Zeffert et al she has forfeited or squandered the right to only raise it during defence and having failed to raise the issue with Dr Nkondo then cadit questio . [113]     The cause of death was throttling which would only take 25 seconds to 5 minutes. The first accused stated that the late C[...] was alive in the morning, having fed her morvite and milk. The late C[...] was under her care when second accused was at work. The reasonable inference under circumstances and to the exclusion of others is that she is responsible for having straggled the late C[...] to death. In the premises the first accused is found guilty of murder read with the provisions of section 51(1) of the CLAA. [114] I find merits in the submission by the prosecution that the second accused be found guilty of accessory to murder as no efforts were taken by him to demonstrate that the conduct of the first accused was reprehensible deserving of removal from his children more particularly for failing to report the first accused of being responsible for the death of the late C[...].  His conduct is consistent with his failure to report the abuses and injuries he allegedly noticed few days before the late C[...]’s murder as he was concerned that the children may be taken away if he raises an alarm about first accused’s alleged misdemeanour. The conduct of both accused before the date of death and leading to C[...]’s death was intended to culminate in her death. Dr Nkondo having testified (and not challenged) that the injuries were inflicted between the date of death and 12 days before.- also having identified scars which were more 2 moths old. The pointing of fingers by accused against each does not tarnish the evidence presented by Dr Nkondo and the contention by the State that their admissions that the children were also in their care and no third party may be to blame. It was held in Osman that “ Once the prosecution has produced evidence sufficient to establish a prima facie case, an accused who fails to produce evidence to rebut that case is at risk. Further that ‘…absent any rebuttal, the prosecution’s case may be sufficient to prove the elements of the offence.” [22] Similar sentiments were echoed by the SCA in Komane [23] where the court stated as follows: “ I can only repeat what this Court stated in S v Chabalala 2003 (1) SACR 134 SCA at para 20, where it said: ‘As was pointed out in S v Mthetwa 1972 (3) SA 766 (A) at 769D: “Where . . . there is direct prima facie evidence implicating the accused in the commission of the offence, his failure to give evidence, whatever his reason may be for such failure, in general, ipso facto tends to strengthen the State case, because there is nothing to gainsay it, and therefore less reason for doubting its credibility or reliability;…”. [24] Conclusion. [115] The evidence of Dr Nkondo demonstrated that there were multitude of injuries sustained by the late C[...] and specifically that her vagina was penetrated and that she was strangled. Both accused did not challenge the evidence of rape and have accepted that the late C[...] was always under their care. The accused did not challenge Dr Nkondo’s evidence on her conclusion about the cause of death. The first accused did not cross examine Dr Nkondo and the second accused submitted that he could not tender any expert evidence to challenge the evidence of Dr Nkondo.  It was stated in Komane [25] that failure to proffer evidence for any reason whatsoever in face of prima facie evidence put the accused in a risk. [116] On a closer scrutiny evidence presented by the accused amounts to an attempt by both to shift the blame or just denial. They are improbable and lack trustfulness. If anything, their versions in some respects [26] corroborate the version of D[...]. [117]     The facts are clear that C[...] was born to a wrong family. The parents were hell bound to rudely and abruptly bring to an end the life of the late C[...]. All her body parts were visited with untold misery from the accused. It is like the late C[...]’s body parts were undergoing stress test to determine the pressure such parts may withstand before they collapse. The accused have failed to show which unforgivable crime was committed by C[...] for her not deserve respite to live just an extra day in this world. What a tragedy?  What a loss of an innocent C[...] who was deprived of an opportunity to fend for herself whose sin was just wanting to breath. [118] I have also determined that the State’s witnesses credible and their evidence was reliable and were not shaken by the cross examination from the defence. This also extends to the evidence presented by D[...]. Bearing in mind any possible contradictions [27] which may have been identified were not material. The accused were not credible and presented a farfetched testimony, contradicting versions and presented a nonchalant posture as if C[...]’s life was worthless. Order [119]     In the premises I make the following order: Accused 1 is not guilty of Assault with intend to cause grievous bodily harm as set out in count 1 is found guilty of 1.     Child abuse of C[...] B[...] by feeding her until she vomits and forcing her to eat her vomitus and force her mouth and nose shut after forcing food in her mouth. 2.     Rape of the late C[...] B[...] read with section 51(2) of the Criminal Law Amendment Act for penetrating the C[...] B[...] with an unknown object. 3.     Murder of the C[...] B[...] read with section 51(1) of the Criminal Law Amendment Act 105 of 1997 . Accused 2 - is found guilty of:- 1.     Child abuse by hitting D[...] B[...] with an electric cord. 2.     Child abuse of C[...] B[...] by throwing her body against the cupboard and feeding her until she vomits and forcing her to eat her vomitus and force her mouth and nose shut after forcing food in her mouth. 3.     Rape of the late C[...] B[...] by penetrating her with an unknown object read with section 51(2) of the Criminal Law Amendment Act. > 4.     Accessory after the fact to Murder of the late C[...] B[...]. M V Noko Judge of the High Court. Dates: Hearing: Judgment: 20 June 2024 Appearances: For the State: Adv Williams. Office of the Director of Public Prosecution, Johannesburg. For the first Accused: Adv.  J Mawila. Instructed by Legal Aid South Africa, Johannesburg. For the second Accused : Adv S Bovu Instructed by Legal Aid South Africa, Johannesburg. [1] Exhibit L. [2] R v Blom 1939 AD 188. [3] See S v Boesak [2000] ZASCA 112 ; 2000 (3) SA 381 (SCA) and the Constitutional Court in President of RSA and Other v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) at 61. [4] S v Sithole 1999 (1.) SACR 585 (W), para 60 Heads of Argument. [5] Concession by her counsel at para 15 of the heads where it is stated that “Accused one testified and denied all the allegations against her in respect of the alleged offences”. [6] 1951 (3) SA 158 (A) at 163) [7] 1983 (3) SA 717 (A) at 730 B-C, see Heads of Arguments at para 40. [8] S v Van Der Meyden 1991(1) SACR 447 (W), quoted with approval in Tshiki v The State (358/2019) [2020] ZASCA 92 (18 August 2020) at para 44. [9] S v Shackell 2001 (4) SA 1 (SCA) at para [30]. [10] see S v Velela 1979 (4) SA 581 (C) [11] S v Mwali 1992 (2) SACR 281 (A). [12] S v Barnes 1990 (2) SACR 485 (N). [13] 38 of 2005. [14] R v Kuzwayo 1960 (1) SA 340 (A) at 344. [15] Thulare J in Sphuhle and Another v The State (A233/21) [2022] ZAWCHC (4 February 2022) noted at para [6] that there are two test developed by the courts, first, whether the offences were committed with a single intent and were part of one continuous transaction or, secondly, whether the offences differed from one another in their elements and whether the same evidence was necessary to prove both offences. the tow tests can be individually or collectively applied but are not necessarily decisive. [16] R v Johannes 1925 TPD 782. See also S v Wehr 1998 (1) SACR 99 (CC) at 100. [17] Du Toit, De Jager, Paizes and Van der Merwe “ Commentary on the Criminal Procedure Act’ >, Juta, 14-8. [18] Id at 14-10A. [19] S v BM 2014(2) SACR 23 (SCA). [20] Noting further that section 305(3) of the Children’s Act defines abuse to include assaulting and any form of ill-treatment. [21] See DT Zeffert, AP Paizes and A St Q Skeen, The South African Law of Evidence , LexisNexis, Butterworths, at 753. [22] See Osman and Another v Attorney - General, Transvaal as quoted wit approval by the Constitutional Court in S v Boesak [2000] ZACC 25 ; 2001 (1) SACR 1 (CC) at para 24. In Osman the accused elected to remain silent, and [judgment] is referred to on the basis of parity of reasoning. [23] David Papiki Komane v The State (51/2019) [2022] ZASCA 55 (20 April 2022). [24] Id at para [34]. [25] Ibid at para [112]. [26] Noting that other impugned conducts of the accused which are set out as alternatives under counts 2 – 4 could not be sustained. [27] It does not follow automatically that every identified contradictions lead to the rejection of the evidence. It was held in S v Mkohle 1990 (1) SACR 95 (A) that “ Contradictions per se do not lead to the rejections of a witnesses’ evidence, they may simply be indicative of an error” .  In addition. “ Nor every error made by a witness affect his credibility. In each case the trier of fact has to take into account such matters as the nature of the contradictions, their number and importance and their bearing on other parts of the witness’s evidence”. See S v Oosthuizen 1982 (3) SA 571 (T) at 576 G – H [27] sino noindex make_database footer start