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 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

KWAZULU-NATAL DIVISION, DURBAN

CASE NO: CCD10/2020

In the matter between:

THE STATE

and

ZANDILE NSELE                                                                                                 ACCUSED

J U D G M E N T

Henriques J 

Introduction

[1] On 13 June 2019, 11-year-old S [....] M [....](the deceased) a scholar said goodbye to her mother N [....] and left her home in N [....]Pinetown for the accused’s home. Her home was a short distance away from that of the accused. When she did not return home later that afternoon, her mother sent her brother to look for her in the neighbourhood. As the evening drew close and darkness descended, the deceased’s mother, her family and friends and community members commenced a search for the deceased. searching for her. Regrettably, they did not find her and approximately three weeks alter the body of the deceased was discovered on Thursday, 4 July 2019 in close proximity to the home of the deceased in a bush and shrubbery.  A subsequent postmortem examination of the body of the deceased reflected the cause of death as being “undetermined due to advanced decomposition”. 

[2] On 14 June the accused left her home in N [....]  for Meyerton where her husband resided. Whilst there she confessed that the police were looking for her in connection with the disappearance of the deceased. He convinced her to hand herself over to the police and she was subsequently arrested on the weekend of 16 June 2019 in Johannesburg in connection with the disappearance of the deceased. She was subsequently indicted on the following counts.

The Amended Indictment

[3] At the commencement of the trial prior to the indictment being put to the accused and her pleading to the various counts in the indictment, the State sought to amend the addresses reflected in counts 1, 2, 3 and 4 from M [....] Street to M [....] ROAD, N [....], Pinetown. There was no objection to such amendment and accordingly the amendment to the addresses in the various counts in the indictment was granted.

3.1 COUNT 1: KIDNAPPING 

IN THAT the state alleges on or about 13 June 2019 and at or near M [....] ROAD,

N [....], PINETOWN the accused unlawfully and intentionally deprivedS [....]  M [....] a minor female aged 10 years, of her liberty by restraining her neck and ankles with cable ties and preventing her from returning to her home;

3.2 COUNT 2: MURDER, READ WITH SECTION 51(1) AND PART 1 OF SCHEDULE

2 OF ACT 105 OF 1997 

IN THAT the state alleges that between the period 13 to 14 June 2019 and at or near M [....] ROAD, N [....], PINETOWN, the accused unlawfully and intentionally killedS [....]  M [....] a minor female person.

3.3 COUNT 3: CONTRAVENING REGULATION 25(a) PROMULGATED IN TERMS OF SECTION 90(1) READ WITH SECTION 68(1) OF THE NATIONAL HEALTH ACT 61 OF 2003 

IN THAT the state alleges that on or about 13 June 2019 and at or near M [....] ROAD, N [....]PINETOWN the accused, who was not permitted by or under any law, acquired tissue of a deceased person to wit S[….] M [….]in a manner not provided for or for a purpose other than those permitted in terms of the National Health Act 61 of 2003 and its Regulations, to wit by removing the internal organs and/or other soft tissue of the said S [….] M [….] after killing her;

3.4 COUNT 4: ATTEMPTED EXTORTION

IN THAT the state alleges on or about 13 June 2019 and at or near M [....] ROAD, N [....] PINETOWN, the accused did unlawfully and intentionally induce, threaten, subject to pressure or inspire fear in the mind of N [....] N [….] M [….] by demanding a ransom payment of R20 000 for the safe return of her minor daughter S [....] M [....] who was kidnapped earlier that day, and did then and by means of the said threat, inducement or pressure, unlawfully and intentionally attempt to obtain an advantage not due to her, to wit, a cash payment of R20 000;

3.5 COUNT 5: ATTEMPTED EXTORTION 

IN THAT the state alleges that on or about 13 June 2019 and at or near M [....] ROAD, N [....] PINETOWN, the accused did unlawfully and intentionally induce, threaten, subject to pressure or inspire fear in the mind of M [....] B [....] N [....]by demanding a ransom payment of R20 000 for the safe return of her minor daughter S [....] M [....] who was kidnapped on 13 June 2019, and did then and by means of the said threat, inducement or pressure, unlawfully and intentionally attempt to obtain an advantage not due to her, to wit, a cash payment of R20 000;

3.6 COUNT 6: ATTEMPTED EXTORTION

IN THAT on or about 14 June 2019 and at or near M [....] ROAD, N [....] PINETOWN, the accused did unlawfully and intentionally induce, threaten, subject to pressure or inspire fear in the mind of N [....]  N [....] M [....]by demanding a ransom payment of R20 000 for the safe return of her minor daughter S [....] M [....] who was kidnapped on 13 June 2019 and did then and by means of the said threat, inducement or pressure, unlawfully and intentionally attempt to obtain an advantage not due to her, to wit, a cash payment of R20 000. 

Summary of substantial facts

[4] The State alleges that the deceased resided with her mother at M [....] ROAD, N [....] Pinetown. The accused, a 40-year-old unemployed female, resided a short distance away from the deceased’s home and they were well known to each other and often visited each other’s homes. Because the accused was experiencing financial difficulty, she planned to kidnap and murder the deceased in order to demand ransom from her parents and to remove her organs and/or body parts for sale. To achieve this, the accused prepared a place to dispose of the deceased’s body at her home and arranged for the deceased to meet her on 13 June 2019 on the pretext of taking her to the shops to buy her chips. 

[5] During the afternoon of Thursday 13 June 2019, the deceased left home on route to the accused’s home. On her arrival there the accused restrained her, bound her neck and ankles thereby injuring her fatally. Thereafter she removed some of the deceased’s organs and/or body parts before dumping the deceased’s body in a bush near her premises. During the course of that same evening, the accused demanded a sum of

R20 000 from the deceased’s mother for the safe return of the deceased and on Friday 14 June 2019, the accused fled her home for Johannesburg. On Friday 14 June 2019 and Saturday 15 June 2019, the accused once again made two further demands for ransom money from the deceased’s mother in the amount of R20 000, for the safe return of the deceased. The body of the deceased was subsequently discovered during the course of the day on Thursday 4 July 2019.

Legal Representation

[6] Mrs S Naidu prosecuted the trial on behalf of the State and Mr T P Pillay represented the accused. The court is indebted to Mr Pillay for stepping in at the eleventh hour to represent the accused as a result of the accused’s former legal representative, Mr Mlotshwa’s illness.

Exhibits

[7] Various exhibits were handed in during the course of the trial which are a matter of record. Only some of these will be referred to in the judgment.

Plea

[8] The accused pleaded guilty to counts 1, 4, 5 and 6. She pleaded not guilty to counts 2 and 3 and her plea in respect of those two counts was that of a bare denial. In amplification of her guilty plea, she filed a written explanation in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 (the CPA). In addition, she acknowledged that such statement was freely and voluntarily made and that she was fully au fait with the various counts in the indictment and the provisions of the Criminal Law Amendment Act 105 of 1997 (the CLAA).   

[9] The plea of guilty of the accused indicated as follows: 

‘5.

During 2019, I resided in N [....] Township at a rented two-roomed house with my two M [….]. My husband was working and residing at Meyerton, Johannesburg. 

6.

I have two children with my husband and they reside at Empangeni with their grandmother. They are 15 years and 4 years old. 

7.

I was self-employed as a street vendor and sold fruits and vegetables in Pinetown. I made on average per month of around R4000-00.

8.

I was responsible for maintaining and paid the rent for the house where I resided in the sum of R2400-00 per month. I also sent money for my children in Empangeni. 

9.

My husband used to send me R1500-00 per month but after he was retrenched from work in January 2019, he stopped this support. 

10.

I knew S [....] M [....] the deceased in this matter and her mother, N [....]. I got along very well with both of them. I used to visit them both at their home and N [….] and I talked about a variety of woman issues. At one time, I was also her tenant and rented a place from N [....]. 

11.

On 12 June 2019, I was sitting at my house when S [....] M [....] hereinafter referred to as the deceased, visited me. I was doing my laundry at the time. When I was done, we sat together and watched “NIGERIAN MOVIES”. While watching the movies I did her hair and later around 6pm, I accompanied her home.

12.

On 13 June 2019 at about 12am, the deceased visited me again. I was not in a good state of mind as I was having financial problems. At the time, I owed money to a lot of people in the area. 

13.

As I sat there, I was busy thinking of ways to make extra cash to supplement my income and pay my creditors as some were threatening to assault me or take some of the furniture at my home. I then came up with a plan to send an SMS to the parents of the deceased and pretend to be a certain male person known to her father. I was going to make up a story and say the father of the deceased had an affair with the wife of this male person and as a result, the family was broken up. While we were watching the Television, I decided to go ahead with this. 

14.

Around 4pm the deceased told me she wanted to leave, I told her that she should wait for me to dish up food and that she would leave after eating. She stayed for a few minutes and then told me again that she was leaving. I realised that if she leaves I would not be able to put my extortion plan into action. I told her she was not going to leave.

15.

I moved closer and sat next to her. I believe at this time she realised I meant it when I said she would not leave. She tried to stand up quickly. I jumped from the couch and grabbed hold of her. She started crying. I put my hand on her mouth and threatened to beat her up if she continued crying. She continued crying and kicking this time she was loud, I put my hand on her mouth again and stopped her from crying but she put up a big fight trying to free herself. 

16.

I started to panic and moved her to the kitchen so that I could find something to put in her mouth. She put in a fierce fight trying to free herself, I panicked again. I saw cable ties next to the cupboard, I quickly grabbed the cable ties and restrained the deceased with them. 

17.

While figuring what to do I heard people talking outside, I thought they could be those who heard her screaming. I left her on the floor lying face down and went out to investigate why the people were talking nearby. I went outside my house and I saw three black males talking and laughing it did not appear as though they were there because they heard the deceased screaming. I walked around and pretended as if I was not interested in their presence I wanted to make sure that they were minding their business. After 5 minutes or so, I returned to the house. 

18.

As I rushed back into the house and moved closer to the deceased, I noticed that she was not moving. I turned her around; I noticed that she had a whitish foam around her mouth. I became more scared and panicked as I did not want to harm the deceased but only wanted to restrain her and to keep her quiet while I kept her at my place.  

19.

I looked at the time and noticed it was closer to 18h00. I knew that N [….] and Y [….] usually arrive at 19h00. I looked through the window and saw that it was dark outside. I put the deceased in my suitcase and carried it to the bush, not very far from my house. I took the deceased out, left her there, and returned to my house. That was the last I saw the deceased. 

20.

Around 22h00 on 13 June 2019, I took a sim card, which I was not using and inserted it to Y [….]’s cell phone and sent an SMS to the deceased mother and pretended to be that unknown man. I demanded an amount of R20 000-00. I also sent the same SMS to the father of the deceased. Both messages were not answered.

21.

On Friday, 14 June 2019, during the day I sent another SMS demanding the money I am not sure if I sent it to the mother or to the father. I indicated in the message that they must deposit the money at Spar I also told them to use 1525 as a pin number. They did not respond to this message as well. 

22.

On 14 June 2019, around 10am, the police arrived at my home and they asked me questions about the disappearance of the deceased. They searched the house and they took a statement from me. On the same day in the afternoon, I left my home and went to Johannesburg I arrived there on Saturday morning. 

23.

I stayed with my husband for a few days; I then told him I was the suspect in the case of a disappearance of the child in the area where we stayed. He told me that I should return home. On the day of my arrest, my husband took me to Meyerton police station and the detectives from Pinetown arrested me there and took me Pinetown police station where I was charged with kidnapping and later charged with Murder and other counts as contained in the Indictment.

24.

I formally admit in terms of Section 220 the following: 

Kidnapping:

24.1. I admit that on 13 June 2019, I intended to deprive the deceased in this matter of her liberty by preventing her from returning home.

24.2. I knew that my actions were unlawful.

Attempted extortion: Count 4-6:

24.3. I admit that I attempted to extort money from the deceased’s family on three occasions in the sum of R20 000.

24.4. I knew that my actions were unlawful.’

[10] The State did not accept the accused’s guilty pleas on counts 1, 4, 5 and 6 and they were thus recorded as formal admissions in terms of s 220 of the CPA. In addition, the court explained to the accused the ramifications of the State not accepting the plea and the fact that any admissions contained in her written plea would be regarded as evidence and the State would not have to lead any evidence or witnesses in that regard. She confirmed that she understood this as did her legal representative, Mr Pillay. 

Section 220 admissions 

[11] The accused made admissions in terms of the provisions of s 220 of the CPA as follows:

11.1    that the deceased is S [....] M [....] a female child.

11.2    that the deceased’s body was discovered by members of the South African Police Services (SAPS) on 4 July 2019 at or near N [….] Road, N [....] Pinetown.

11.3    a post-mortem examination was conducted on the body of the deceased on 10 July 2019 at the Pinetown government mortuary by Dr Zainub Khan who recorded her findings and observations in a post-mortem report marked KZN/PTN/PM 756/2019 (exhibit “E”) wherein the cause of death was “Undetermined due to advanced decomposition”;

11.4    that Sergeant S.J. Vezi a qualified draftsman and photographer employed by the SAPS LCRC, Durban attended at two scenes, at N [....]   Road, N [....] Pinetown on 4 July 2019 and compiled two photo albums under LCRC 339/07/2019 marked exhibits “B and F” respectively.

11.5    the photographs in exhibit “F” depict the deceased at the spot where she disposed of her body;

11.6    exhibit “L” contains photographs depicting the body of the deceased at the time of the post-mortem examination under LCRC 339/07/2019;

11.7    at all material times prior to, during and after the commission of the incident her cellphone number was … [….] and such network data records from Vodacom in respect of such cellphone number are true and correct as contained in exhibit “G”;

11.8    she used cellphone number. [….] to demand money from the parents of the deceased for her safe release and the network data records from Vodacom in respect of such cellphone number are true and correct and are reflected in exhibit “H”;

11.9    that her niece-in-law Y [….] M [….] possessed a cellphone with a MTN cellphone number 083 443 4086 and that the data records of such cellphone number which are true and correct are contained in exhibit “J”;

11.10   that when the police attended at her home shortly after the deceased had gone missing, she presented Y [….]’s cellphone to them when they asked to see her phone. Prior to fleeing to Johannesburg, she removed Y [….]’s cellphone which was charging and left in its place another phone of hers.

11.11   she removed Y [....]  ’s sim card and placed it in her cellphone and put her sim card with the number .... [....] into her cellphone and took the number with her to Johannesburg. The dual IMEI numbers of her cellphone and network data records in respect of the cellphones are true and correct and are entered into the record as reflected in exhibit “K”;

11.12   she left the sim card with the cellphone number … […]in Johannesburg which was subsequently retrieved and handed over to members of the SAPS by her husband;

11.13   the cellphone numbers of the deceased’s mother and father were ... [....]   and ..[….]

The evidence

[12]       As the State did not accept the accused’s pleas on counts 1, 4, 5 and 6 and because the accused pleaded not guilty to the count of murder and contravening reg 25(a) of the National Health Act, the State set about leading the evidence of various witnesses in respect of counts 2 and 3. The State alleged that the murder of the deceased was planned and premeditated. 

[13]       The evidence and cross-examination of the witnesses is a matter of record and I propose to only summate the evidence for purposes of the judgment. The first State witness was the niece of the accused, C [....]  C [….] (C [....]). She confirmed that she and Y [....] , the accused’s niece-in-law, resided with the accused at her home in M[….] Street, N [....] Pinetown. She and Y [....]   worked at a fashion store in Pinetown City Centre and the accused was a street vendor who sold fruit and vegetables near the Nandos, which was situated in the Pinetown City Centre. She commenced residing with the accused in April 2019. 

[14] She confirmed that the accused would often visit them at their work place as this was close to where she had a table. Approximately two weeks prior to 13 June 2019, the accused visited them at their work place. On this occasion although she was present, the accused spoke to Y [....]. When she questioned Y [....] as to the purpose of the accused’s visit, Y [....] informed her that the accused had come looking for cable ties or cable clamps. Previously she had seen a single cable tie in the drawer of the kitchen unit but was not aware precisely what the cable tie was used for. This was when she first commenced residing on the premises in April 2019. 

[15] She was not familiar with the deceased and did not know of her and only learnt of her disappearance in the evening when the accused had gone looking for a missing child and returned and indicated that they could not find the child. She learnt of the full story relating to the deceased’s disappearance on the following day when the police arrived at their home looking for the missing child. She testified that on the night in question, they returned home from work at approximately 18h30 and sat down to watch TV whilst the accused was eating.

[16] M [....] , a neighbour arrived shortly thereafter and informed them that they could not find the deceased. The accused put her food away and then left with M [....]  and others to try and find the deceased. This was between 18h30 and 20h00 that evening. She and Y [....] then went to sleep and she noticed that when the accused left the home to search for the deceased, she took her Stylo phone with her and Y [....]  ’s phone was on the charger. 

[17] The accused had returned home after midnight and knocked on the door asking her to open up, which she did. When she came inside the accused informed her that they could not find the missing child. When they questioned her about the child and what had gone wrong, the accused informed them that the child had left her home en route to come and visit her when she had gone missing. They did not discuss the matter any further and she and Y [....] then went back to sleep leaving the accused to eat her food. 

[18]       Later that morning between 02h45 to 03h00, the police arrived. The accused woke her up and informed her that there were people knocking at the door and she informed the accused not to open the door and make sure to see who it was. On noticing that it was the police, the accused opened the door and the police then questioned her about the missing child. The accused responded to the police saying that she did not know anything about the missing child and during the course of questioning her, the police asked the accused to hand over her cellphone. 

[19]       She then noticed the accused remove Y [....]  ’s cellphone off the charger and hand it to the police. The police took Y [....]  ’s phone, went through it, but did not find anything and then handed Y [....]  ’s phone back to the accused. After the police had left she questioned the accused as to why she handed over Y [....]  ’s phone to the police and not her own. The accused informed her that there was a business that she was involved in relating to the sale of dagga and all the information relating to that business was on her phone and she did not want the police to find out about it.

[20] She confirmed that in the early hours of the morning when the police had arrived at their home to speak to the accused, they were in the company of the missing child’s parents, community members, and family members of the missing child. In the presence of the police she observed that the accused, although she indicated she did not know anything about the incident, appeared to be panicking. After the police had left their home, the accused informed them that she was going to M [....]  ’s house.

[21] The accused apparently was going to find out from M [....]   as to whether the police had also been to her house. According to the accused, she did not reach M [....]  ’s house as she saw the police at the shop making enquiries and so she returned home at approximately 04h00. She heard the accused come into the house and then go out again and begin sweeping the yard in the early hours of the morning. This puzzled them as it was the first time that they observed the accused sweeping the yard in the early hours of the morning since residing with her. They then prepared to go to work and left and returned home at approximately 18h30 that day. The accused was not there when they arrived home and she did not see her again until her evidence in court.

[22] She confirmed that when the accused left on 14 June 2019 she did not inform them where she was going but learnt that the accused had informed M [....]   that she was going to Durban. The accused had also phoned her maternal aunt and asked for their number. She confirmed that on the Sabbath, when the accused telephoned her, the accused informed her that she was in Johannesburg. The reason for telephoning them was to find out if they were okay and to inform them that she was alright.

[23] During the course of this conversation, the accused asked her whether there were any rumours in the area concerning her possible involvement in the disappearance of the missing child and if members of the community wanted to burn her house down. She responded and informed her that there were no such rumours nor were members of the community wanting to burn her house down.

[24] She testified that this conversation with the accused took place near the shop. At the time, the father of the deceased and others were in close proximity to where she was and overheard her talking to the accused. They approached her and asked her to put the phone on speaker, which she did, and they overheard the entire conversation. When she terminated the call, the father of the deceased called the police and they met on the road near the accused’s home. 

[25] N [....]  M [....] D [….] (M [....]) testified that in June 2019 she resided in N [....]   area, N [....] Pinetown. At that point in time she had resided in the area for approximately three years and knew both the accused as well as the deceased and her mother, N [....]. She confirmed N [....] had two children a daughter, S [....]  (the deceased) and a son, C [....]. Initially the accused and N [....] resided in the same place close to each other, but after a while, the accused moved to a home which was immediately below her home.

[26] Until June 2019 the accused was a person whom she knew from the area but the relationship changed as she started to get to know her better. Sometime in June 2019 the accused called her and asked for help. The accused informed her that she was new in the area and did not know anyone but needed money. She informed the accused that she knew someone who loaned monies as she had previously loaned money from this person. She accompanied the accused to the home of U [....] B[...], the money lender but he was not present. 

[27] The accused then took her phone number and informed her that she would go to

U [....]  B[...]’s house early the following morning and would telephone her to confirm if she was able to loan money from him. She questioned the accused as to what she wanted the money for and the accused informed her that she needed the money as her husband had been involved in a motor vehicle accident and she needed to fetch him from the hospital. She was aware that at the time the accused’s husband was residing in Johannesburg. This discussion, in relation to the loan of monies, took place at the end of May 2019. 

[28] The following day whilst at work, she received a telephone call from the accused at approximately 09h00 informing her that she had received the loan from U [....]  B[...]. She responded and informed the accused that she was happy that she had received the loan and wished her husband a speedy recovery. On Monday afternoon, when she returned from work in the late afternoon, the accused approached her for help once again. She wanted her help in obtaining the assistance of the boys who lived next door.

[29] The accused, after speaking to the boys next door and in answer to her question, informed her that she wanted the boys to help her dig a hole in her yard that she could use to put rubbish in. She cautioned the accused against seeking their assistance as she was aware that the boys were dangerous and they smoked drugs.

[30] The accused explained to her that she wanted the hole to put the dirt in as she would often forget to take the dirt out for the municipality to remove and would return from work late in the afternoon. She informed her that she would dig the hole for her the following day being the Tuesday in exchange for payment as at the time she needed to buy soap and milk for her children. She informed the accused that she would finish work early as she was only cleaning the windows and would thus be free in the afternoon to dig the hole for her.

[31] On the following day, she returned from work at approximately 13h00 and fell asleep as she was tired. The accused then arrived at her home and asked her about digging the hole for her. Although she was tired, she informed the accused that she would dig the hole for her but needed tools. The accused informed her that she must borrow tools from the neighbours and she accordingly did so whilst the accused waited for her on the road. She went to the neighbours and requested the children present to lend her a shovel to dig the hole and promised to return the shovel on the same day.

[32] She then proceeded to the back of the accused’s home where the accused drew a square on the ground, marking where she wanted her to dig the hole. The place where the accused had pointed out for her to dig the hole looked like items had ready been burnt there and that a hole had previously been dug there. The accused informed her that a hole had previously been dug there by a youth from the neighbourhood B[....] and because of the rain, the hole had closed up.

[33] She then removed the corrugated iron which was covering the spot where the accused had pointed to and began digging the hole. The accused assisted her to dig the hole by removing the rocks and stones which she was taking out of the hole. The accused cleaned the yard while she dug the hole and once it had reached knee height, she informed the accused that the hole was sufficiently deep. 

[34] The accused told her that the hole was too small and she wanted it dug to waist height. She continued digging the hole and after a while became tired and informed the accused of this. The accused came to assist her by removing the loose sand from the hole. She dug the hole to waist height and when she had completed digging the hole the accused paid her R100. The accused accompanied her home and waited at her home with her children while she went with Zama, a neighbour to buy the milk and the bar of soap from the shop. She provided Zama with R10 of the money to buy airtime.

[35] She confirmed that the deceased had gone missing on Thursday, 13 June 2019 and that she had dug the hole on Tuesday of the same week that she had gone missing. She testified that when she returned from the shop with Zama, the accused remained with her at her home with the children and they sat together talking. Zama then left to return to her home and she then accompanied the accused to the shop as the accused wanted to buy airtime.

[36] On her return from work on the Wednesday at approximately 18h00, she saw the deceased in the company of the accused. At the time, the accused was accompanying the deceased to her home. After she had left the deceased at her home, the accused arrived at her house and requested her to accommodate Y [....]  and C [....]  at her home. The accused informed her that her boyfriend was coming to visit and she did not want C [....]  and Y [....]  to know of this as they were related to her husband and she was concerned they would inform her husband of her boyfriend.

[37] She agreed as she had a sleeper couch which the girls could use. However, on the day, Y [....]   and C [....]  did not sleep there but went to their boyfriends home and she went to sleep. The accused then arrived at her home and asked for her assistance in arranging transport for her boyfriend. At the time, the accused had her youngest child on her back. She accompanied the accused to a man in the area who operated an Uber and requested his assistance but he was unable to arrange the transport and assist them.  [38] The following day being the Thursday, she was at work and saw the accused again in the afternoon. When she arrived home, the deceased’s mother N [....]  arrived at her home and questioned her regarding the deceased’s whereabouts. She informed N [....]  that she had not seen the deceased and also asked her children if they had seen her. One of the children responded by saying that she had last seen the deceased in the company of the accused in a black car.

[39] N [....]  then said they needed to make enquiries as the deceased had never been away from home for such a long period of time.  After putting her bag away, she then accompanied N [....]  to F[....]’s home to make enquiries regarding the deceased. On their arrival at F [....]’s home, F[....] informed them that she had not seen the deceased and had last seen her during the day when she was playing in the yard. That is when N [....]  indicated that they should go to the accused’s home to look for the deceased as the deceased had gone to the accused’s home during the day and the accused had informed her that she was taking the deceased to Pick ’n Pay to buy chips for her.

[40] They then proceeded to the accused’s home and questioned her regarding the deceased’s whereabouts and informed her that when the deceased had left home earlier on that day, she informed her mother that she was coming to the accused’s home. The accused informed them that she had not seen the deceased at all and that maybe the deceased had been referring to another aunty who resided in the area. N [....]  then phoned the other aunty and she responded that she had not seen the deceased.

[41] They all then left to conduct a search for the deceased in N [....]. At the time, they were accompanied by community members and the deceased’s uncle. Whist they were on the road heading towards the D [….] homestead, the accused indicated that she wanted to go home and drink her tablets. At approximately 22h00 they returned to N [....]’s home. Whilst there a message came through on N [....]’s phone. When the message first came through, the accused said she wanted to drink water. The message said:

‘I could see you were searching. You were looking for S [....]. I have S [....]  with me. Can you please give me the sum of R20 000. I will release S [....]  because you have traumatised my life. I want to start a new life.’

[42] After the message had been received they were all trying to read it and make sense of it. The accused came to them whilst they were reading the message. She could not recall if this was after the accused had drunk water or when she returned from the toilet as there a stage when the accused said she also wanted to use the toilet. The accused started reading the message, it was in English, and the accused read it out loud. She told them when she read it that the message was from a Nigerian and the way in which the accused read it out was with a Nigerian accent. 

[43] After they had informed the deceased’s father of the message he informed them that he too had received a similar message on his phone. At that point in time the deceased’s father turned to her and told her that she must phone the father of her children to return the deceased. The reason why he said this to her was that she was in a love relationship with the deceased’s father and because the message had indicated you have traumatised and abused me so much and you took away my family, he probably thought that this was in reference to the father of her children. 

[44] She telephoned the father of her children whilst they were all still together. She informed the father of their children what had happened and he said he knew nothing about it, specifically the deceased going missing. He also informed her that he had no reason to take the deceased and questioned why he was being accused as he had left Durban in 2017 and relocated to Mpumalanga. 

[45] M [....]  conveyed this to the deceased’s father who had left work in Tongaat and arrived at N[....]’s home. She informed them that the father of her children knew nothing about the incident or the disappearance of the deceased. N [....]  also indicated that the father of M [....]  ’s children would not have done such a thing, as he was a good person.

[46] All the while, the accused pretended to be okay but she noticed that there was something wrong with her as the accused kept on drinking water and kept on wanting to go to the toilet. At the time, she did not think that anything was wrong and did not regard this behaviour as suspicious and only thought about it afterwards. The police were called and they then took all of them for questioning. The police then took them to the accused’s home and questioned her about the hole that had been dug. She informed the police that the accused had asked her to dig the hole. She was interviewed by the police on a number of occasions during the course of the week. Time and time again she was fetched, questioned, detained and threatened. 

[47] She confirmed that on the evening that the deceased went missing, she had seen the accused. They had gone to the accused’s house on the Friday morning, 14 June 2019 to drink coffee. This was the day that the police came and searched the accused’s home and questioned them. She went home and went to her employer. When she was about to leave to go to work, the accused informed her that she was leaving the area and going to Durban to her boyfriend. The accused did not return to the area and this was the last occasion that she saw her until her appearance in court.

[48] Apart from assisting the accused to dig the hole, she did not do any other work for her at her premises, like washing her clothing. She confirmed that the deceased and the accused were very close and she referred to the accused as ‘aunty’. Whenever she used to see the deceased going past her home the deceased would say that she was going to aunty Z[….]. She was aware that the deceased would never leave her home and would only play in the yard. When the deceased went to the accused’s home, she spent a lengthy period of time there which caused her to believe that she enjoyed being there and was comfortable spending time at the accused’s home.

[49] Using exhibit “B” she identified the toilet and the home of the accused. On photo 16, D is a plastic bag in the hole that she dug. There is a lot of dirt around the hole. She confirmed that when she dug the hole, not all these items were there and the rubble came out of the hole as she dug it.

[50] Photos 17 and 18 are rock and stone debris around where she dug the hole. The hole as depicted in the photos is not the same as when she dug it on the Tuesday and looks as though it had been tampered with. She indicated that when she left the hole, there was only the rock and she could not take it out, now it seemed as if there was sand in the hole. She confirmed that when she dug the hole she initially dug it to knee height, which was approximately half a metre. Thereafter the accused informed her to dig deeper and she estimated it to be a depth of over a metre.

[51] The reason why the accused told her to dig a deeper hole was that the dirt in the toilet ended up in the black bags and had not been discarded on the Wednesday and she would need a bigger hole. She confirmed that Wednesday was garbage day but that in photos 17 and 18, there does not appear to be any garbage disposed of into the hole.

[52] During cross-examination she confirmed that prior to June 2019 she worked as a domestic in the suburbs surrounding Pick ’n Pay. She disputed that her relationship with the accused was a close one and confirmed her original evidence-in-chief that it was at the end of May 2019 that she got to know her better. In April 2019 she was residing with her husband and did not know the accused as suggested by the accused’s legal representative. She confirmed that between her house and that of the accused there is a bush, and the accused resides above her so the accused could see into her yard. She disputed that she and her children took their clothes to the accused’s home to wash as the accused had a washing machine. 

[53] She indicated that on the Wednesday, the day the deceased went missing, the accused called her children and the neighbour’s children to do their washing at her home as she had a washing machine. She disputed the accused’s version that she would do her washing at the accused’s home as she did not have running water. She indicated that there was a tap in front of the yard where they all live and a spring at the back of her home and she had access to running water. She disputed the accused’s version that on Wednesday 12 June 2019 when the deceased was at her house visiting her, Ms D[....] and her children came to wash their clothes there.

[54] She confirmed that she had gone to work and that she had told her children to do the washing at home. The children informed her that the accused had come to her home and found her children and the neighbour’s children there and told them to come to her house to do their washing in the machine. That is when they went to the accused’s home to do the washing.

[55] On Friday 14 June 2019 at approximately 09h00, she was present when the SAPS arrived at the accused’s home. She confirmed that on the Thursday evening the accused had spent the night at her home and on the following morning she accompanied the accused back to her home to have tea. It was whilst they were having tea that the police arrived. On Thursday night the accused was at her home. She consequently disputed that on Thursday night when it was discovered that the deceased was missing, the accused slept at her own home.

[56] She confirmed that the accused was lying and that on the night in question the accused sat on the sofa the whole night and did not sleep. The accused said she could not sleep and that is how they then went to the accused’s house in the morning in each other’s company. She disputed the previous State witness C[....] ’s evidence that the accused came home on the Thursday night and slept there and indicated that she and her children slept on the bed whilst the accused had sat on the couch. 

[57] She further disputed the accused’s version that on 14 June 2019 at 07h00 she arrived at the accused’s home to wash her clothes and that is when the police arrived at 09h00. The clothes that were at the accused’s home on Friday morning were those clothes which had not dried and which the children had left behind on the Wednesday. The accused had then hung them on the line and subsequently placed them in the bathroom. She confirmed that the reason why she went to the accused’s house on the Friday was because the accused did not sleep the previous night and she accompanied her home. She decided to also take the clothes on the Friday as the accused indicated that she was going to Durban.

[58] She did not know anything of the accused’s version that she was selling fruit and vegetables in Pinetown but knew that the accused was selling vegetables. She disputed that she got to know the accused as at that time she was living with her husband and did not know that the accused was residing in the street. She disputed that she became acquainted with the accused as she had approached the accused for work and to do washing and cleaning the yard. She indicated that on a Monday to Friday she worked in the suburbs and did not need to go to the accused for work and was not desperate for money as at that stage her man was giving her money. 

[59] She disputed that she would approach the accused on a Sunday indicating that she was available to do washing and clean the yard. She indicated that Sundays were the day she was on a drinking spree. She disputed that the accused used to give her extra work on a Sunday for extra money and used to pay her R50 a day.

[60] In addition, she disputed that she used to ask the accused for the damaged fruit and vegetables that she did not sell as payment for the work that she did. She indicated that if she needed anything she had a boyfriend whose room keys she had. If she needed anything she would go to his room and take it from the room. There was also a couple working at the market and they used to give her any vegetables that she needed. 

[61] While she dug the hole on the Tuesday, two days prior to 13 June 2019, the accused was in the yard cleaning the yard. She confirmed that while she was digging the hole she said to the accused that she saw that there were things that were burnt in the hole and it seemed like there was a hole there before. She confirmed that when she said this the accused responded and said there was a stage when there was a hole there which she had hired a boy to dig for her.

[62] The accused indicated that she disputed that she had informed her that at one stage she had hired a boy to dig the hole for her. She disputed this and indicated that the accused even mentioned the name of the boy being B[....]. She confirmed that the accused was lying when she said that she had explained to her the hole was previously dug by the previous owners. She indicated that the accused’s explanation was that B[....] had dug the hole for her at some stage and due to flooding, the hole had been closed. 

[63] She confirmed that when the accused indicated that she wanted the hole dug deeper to waist length, the accused started helping her remove the sand from the hole. She indicated that the accused was lying when she said she only wanted the hole to be dug to knee height and not waist height. She disputed the accused’s version that she dug the hole on two occasions prior to 13 June 2019, once in April 2019 to knee height, and again in May 2019 to knee height. She indicated that this was not true as she only dug the hole on one occasion being the Tuesday and finished late in the afternoon at about 18h00. She further disputed the accused’s version that the purpose for digging the hole was to put leaves and shrubs and dirt from the yard in there. 

[64] The accused informed her that she needed the hole to be dug deep to put black plastic garbage bags in the hole and even showed her the bags in the accused’s toilet. The accused informed her that she gets up for work very early in the morning and forgets to take the bags to the area for disposal by the municipality. In addition, the dirt that the accused collected while she was digging the hole and whilst the accused was cleaning the yard on the same day, she gathered and disposed of it just outside the yard of the premises. 

[65] She indicated that the shovel which she used to dig the hole was returned on the same day as she promised the neighbours from whom she borrowed it. She confirmed that on the Friday that she was last at the accused’s house, when the police arrived at the accused’s home, the police took her outside while two of them remained with the accused inside the house questioning her. When they went outside the police observed the hole and asked her about it. That is when she volunteered that she had dug the hole after being hired to do so by the accused. She did not volunteer it immediately but rather did so after they had observed the hole. 

[66] After the Friday she did not return to the accused’s home with the police or with anyone else. Apart from the Friday when she showed the police the hole, the police did not dig it any further nor did the members of the community. When she returned to the hole she was asked by members of the community to get into the hole to size it up and that’s when she did so and that is how she knew how deep the hole was. She confirmed that on 14 June 2019, when she showed the police the hole, it looked like it did in the photos. 

[67] She confirmed that the accused may have been unaware that the police observed the hole and that she showed it to them and informed them that she was the one who dug the hole on the accused’s instructions. She disputed the accused’s version that on 17 June 2019 whilst under arrest she was taken to her home in handcuffs and she, together with other members of the community, were present and that was the first time that she overheard her inform the police that she had dug the hole on her instructions.

[68] She confirmed that on the Friday when the police arrived and they discovered the hole, the accused fled from the area and the police came time and time again to her and they went to the accused’s home to check to see if the deceased was there. She could not dispute the accused’s version that between the Friday until Monday, 17 June 2019 she was under arrest. She could not recollect whether it was the Saturday that the accused was fetched from Johannesburg as she was present at the police station when the police said she must be fetched from Johannesburg. 

[69] She could not recollect the exact day that she, the community members, the accused and the police attended at the accused’s home but it did occur. The accused’s home attracted a lot of attention and on a number of occasions people would stand outside the accused’s home and observe her and the police together.

[70] She confirmed that on a number of occasions the parents of the deceased together with community members would attend at the accused’s home to see if they could find the deceased and whether or not she was in the hole which she had dug for the accused. She confirmed that on the night the SMS was received by the deceased’s mother, the accused read the message out in English and translated it to them in isiZulu. She confirmed that the accused read out the message in English in the accent of a Nigerian, claiming that it had been written by a Nigerian. 

[71] She disputed the accused’s version that she had explained it to them in isiZulu and did not speak in a Nigerian accent nor make any reference to the fact that a Nigerian had sent the message. She also disputed the accused’s version that she, being the accused, provided her with instructions to dig the hole and put in two plastic bags from the toilet inside it. She confirmed that the accused asked her to dig the hole because of her forgetfulness in taking the garbage out on garbage day.

[72] She could not comment or say anything regarding C [....] ’s evidence that they would take the refuse bags out on a Thursday. She indicated she did see refuse bags with garbage in it in the toilet on the Tuesday, when she dug the hole. She confirmed that she did not observe the accused burning any shrubs etc. in the hole and saw the accused gather the grass and leaves and place it outside her premises. 

[73] N [....]  Mzimba (N [....]), the deceased’s mother confirmed that on 13 June 2019 she resided at M [....] ROAD, N [....] Pinetown in a cottage with her two children, Cebo her son, the deceased S [....]  who was born 23 August 2008 and the father of her children. At the time her cellphone number was ... [....] and that of her husband was …[….]. In June 2019, at the time of the incident, the accused resided not far from them in Majola Road.

[74] Previously their families, hers and that of the accused, used to rent the same cottages as a result of which the accused shared a close relationship with the deceased. It was a good relationship as the accused never acted funny towards the deceased and they laughed a lot and were often very jovial when they were together. She considered the accused to be a good aunty toward her daughter and whenever they were together or met one another, they used to be very excited to see one another and they openly displayed their affection and excitement for each other.  

[75] When they resided in the same cottages close to each other, her daughter would often visit the accused at her cottage and would tell her where she was when she visited the accused. When the accused did not go to work, her daughter would often be at the accused’s home or in the yard of the premises. She confirmed that when the accused resided with her husband, her daughter would not spend a lot of time with her. After the accused moved from the cottages to her current home at the time of the incident, the deceased did not visit the accused.

[76] She confirmed that on 12 June 2019 her daughter had not gone to school and because she was at home on the Wednesday, she asked her to take out the garbage. The deceased was also in the company of the neighbour’s children when they went to the road to put out the garbage. When she returned she noticed that the deceased was eating chips and was in the company of the accused. Her daughter entered the house with the accused behind her. The accused greeted her and she asked the accused why she did not go to work that day. The accused informed her that she needed to spring clean her house and had gone to buy soap to wash her clothes.

[77] The accused also asked her permission for the deceased to accompany her to Pick ’n Pay in the late afternoon at around 14h00 after she had finished her spring cleaning and she agreed that the deceased could accompany the accused. At the time, the accused indicated to her that the reason for wanting the deceased to accompany her to Pick ’n Pay was that she was buying groceries and wanted the deceased to assist her to carry the groceries and she would buy chips for the deceased. She confirmed that this had occurred on prior occasions and she had never refused the accused’s request for the deceased to accompany her in the past to buy airtime or groceries. 

[78] She testified that the accused said she would wait for the deceased at 14h00 and they would go together. At approximately 14h00 the deceased washed herself and got ready and left for the accused’s house. In the late afternoon at about 17h00, the deceased returned home. On previous occasions she confirmed that when her daughter would accompany the accused to Pick ’n Pay, the accused would meet the deceased in the yard. 

[79] 12 June 2019 was the first occasion that the deceased went to the accused’s house at a different location to go to Pick ’n Pay and walked alone to the accused’s house. The accused had moved to these new premises a few months before the incident had occurred. When the deceased returned from the accused’s home she noticed that her hair had been plaited. She questioned her as to how her hair come to be plaited as she was under the impression she had gone to the accused’s home to go to Pick ’n Pay. The deceased informed her that they did not go to Pick ’n Pay and stayed at the accused’s home as the accused was tired from all the work that she had done. She also informed her that they would go to Pick ’n Pay the following day at the same time and she gave her permission to go with the accused the following day. 

[80] She confirmed that when she questioned her daughter as to what they were doing at the accused’s home for three hours, she informed her that the accused was tired and they had bought vetkoek and ate it and the accused had plaited her hair. She testified that on Thursday 13 June 2019, the deceased informed her that the accused would be bringing her baking flour. She told her to inform the accused not to do so as did not use baking flour and she was under the impression that her daughter would inform the accused of this whilst they were en route to Pick ’n Pay.

[81] On Thursday between 08h00 and 09h00, the accused arrived at her home with flour in a pot. She took the flour as she did not want to make the accused feel bad and they reminded each other about the trip to Pick ’n Pay later on that day. The accused went home and she informed her that it was okay for the deceased to accompany her to Pick ’n Pay later on that day as her daughter had informed her they had not gone the day before. She did her daily chores and her daughter was playing outside with all the children.

[82] At about 14h00, her daughter who remembered about the trip that she was going to take to Pick ’n Pay with the accused, bathed and dressed, and left saying goodbye.  At the time, she was dressed in a pink skirt, blue crop top and blue tights with a grey track top and brand new green flip flops. She confirmed that once again the deceased walked to the accused’s home alone. Before she finished cooking, as the sun set, she realised that her daughter was not home and she thought that she ought to have been back. She sent her youngest child to go and look for her by his friend.

[83] C[….] returned and indicated that on their way back they met the accused who informed them that she had not seen the deceased and she had not come to her home. She carried on cooking and she thought to herself that the accused and her daughter are playing games and went together and are feasting on the groceries, which the accused had bought. She dished out food and left her son at home and went to look for her daughter at the accused’s house. 

[84] En route to the accused’s house, she stopped at M [....]  ’s home to see if they had seen the deceased walking to the accused’s house. When she arrived at M [....]  ’s house she found her there as she had returned from work. She related to her what Cebo her son had said and they asked Thema’s son whether he had seen her daughter. M [....] accompanied her to the accused’s house to look for her daughter. When they arrived at the accused’s home, they questioned her as to whether or not she had seen her daughter. The reason for this was that she informed the accused that when her daughter left home she indicated she was coming to her home. The accused explained that she had not seen the deceased because the trip they were going to take she took it earlier in the day by herself as something urgent had come up and she could not wait for her. 

[85] She confirmed that she had encountered C […,] on the road while she was on her way to buy airtime between 17h00 and 18h00. She, M [....]  and the accused conducted a search for her daughter. This was at about 18h30 as it was already getting dark. At about 22h00, they were tired of conducting the search and they returned to her house together with all the persons who had accompanied her on the search.

[86] A few minutes after arrival at her home M [....]  asked to use the toilet and when she returned after a short while, the accused then asked to go to the toilet and she handed her toilet paper. She estimated the accused was in the toilet for approximately 15 to 30 minutes and when the accused returned from using the toilet, a message came through on her cellphone. She was confused and could not read the message properly. 

[87] The person whom had sent the message wanted R20 000 for the safe return of the deceased. She handed the phone over to M [....]   who read the message to help her make sense of the message. When the accused read the message, the accused said to them from the language used that the person who had sent the message was not a South African. She indicated that the person who had written the message did not know isiZulu. The accused read out the message and informed them that the message said that they must give the money. At the time, the accused read the message in isiZulu combined with English. She did not observe anything odd when she heard the accused read out the message. 

[88] At the time she received the SMS message, the deceased’s father was at work and they called him at approximately 21h00. He indicated that they must wait for him to arrive and on his arrival he informed them that they must go to the police even though the message warned them not to seek the assistance of the police. He informed them that he had already called the police. On his arrival at approximately 22h00 at the premises he informed them of a similar message he had received. 

[89] When she testified N [....]  could not recollect the exact words used in the message but she had shown the detectives the message on her phone which they incorporated into her written statement. The message on the phone read as follows: ‘Hi, I got your princey here by me. Your husband robbed me my life years ago. Now its payback time. I want money or you loose your daughter. I want 20 000 by tomorrow morning. Tell your husband to deposite at Spar. He must deposite separately like 4 000 until ibeyile mali engiyifunayo. Spar and forward dis to numbers, Pin must 1525, and you don’t go to the police because I’m watching you and your husband. If you do say goodbye to S [….] like I lost my wife and kids and, I don’t want to hurt an innocent child. I want money to start new life far.’

[90] She testified that she received the message from cellphone number … [….]. Both she and the deceased’s father received this message on the same day. After this, she received a further message from the same cellphone number after they had been to the police on the Saturday evening at approximately 21h00. The message indicated that she had been informed not to go to the police and read as follows. ‘I thought you were a wise mother. But you are stupid, you are forgetting your child is still a virgin. And that I can still take this child of yours and leave her in the street to fend for herself.’ 

[91] N [....] confirmed that she was present with the police when the body of the deceased was found on 4 July 2019, in a bushy area very close to the home of the accused. She was able to identify the body of the deceased from the clothing that she was wearing and her arm and her legs.

[92] During cross-examination she confirmed that on 14 June 2019 she was present with the police when they went to the accused’s home at approximately 02h45 and found the accused present.

[93] Constable Nomfundo Lihle Mlotshwa (Mlotshwa) confirmed that she was present on 4 July 2019 when the body of the deceased was found. Using the photo album, she confirmed that the body of the deceased was recovered from a thick bush which was very close to the home of the accused and the nature of the bush was such that no person would enter the bush unless they were going to engage in nefarious activities.

[94] There was no footpath leading to the bush and it did not appear as though anyone would gain access to the bush. Standing on the outside of the bushy area, no one would be wiser as to whether or not a body or any items had been placed inside. She testified that no member of the SAPS had dug the hole which M [....]  testified she had dug behind the home of the accused on 17 June when they were conducting their investigations and attended at the accused’s home. They did so subsequent to 17 June 2019. 

[95] She estimated the distance from the home of the accused to where the body of the deceased was found in the thick bush was between 30 to 40 metres. There was no footpath or route leading to the bush and there was a slope or decline near it which did not make it easily accessible. The bush would only be used in her view if one was engaged in some illegal activity or to smoke drugs. 

[96] From the time the body was discovered until the post-mortem examination was conducted, no further injuries were sustained to the body and when the body was moved from the site where it was found, everything was carefully transported to the mortuary for the pathologist to examine. She was present at the time the remains of the body and the body itself was removed from the scene to the mortuary for the examination.

[97] In addition, she was present at the time the post-mortem examination was conducted.  Having regard to exhibit “F”, which depicts scene 2 where the body of the deceased was found, she confirmed that three members of the SAPS searched an area of approximately a 30 metre radius around the body during the course of the day to see whether any further body parts or evidence could be found. None were found.

[98] As part of her duties in the FCS Unit, she was involved in the investigation of human trafficking and trafficking in body parts. The investigations she conducted revealed that the reason why body parts are removed from a body are two fold namely, a person would use certain body parts and organs for muti and secondly, to sell the organs to a third person who may also want to use it for muti. Muti is traditional medicine that is used to treat a person suffering from a disease or infection and a person is advised that a cure for such ailment would be to use traditional herbs and a particular body part.

[99] She confirmed that in South Africa human trafficking involves an individual or a group of persons who abduct and kidnap adults and children, mainly woman, for sale to foreigners. In her view, there was an element of human trafficking involved in the matter before court and she was of the view that a lot more had occurred leading to the killing of the deceased. 

[100] When the investigation commenced, it involved that of a missing child. It was thereafter classified as a human trafficking case and thereafter a kidnapping case as once they commenced with the investigation of the kidnapping case, the body of the deceased was found. During the investigations, they had to ascertain what the purpose of the killing was, whether the child was kidnapped for a ransom or human trafficking or trafficking of body parts. 

[101] She testified that typically, the organs used for muti from a young child or young person are the eyes, tongue, breasts, heart and liver. Commonly body parts removed from young children are either used immediately, or preserved and then either sold or used at specific times.

[102] Dr Zainub Khan, the State pathologist conducted the post-mortem examination of the deceased on 10 July 2019 at the government mortuary in Pinetown. The body of the deceased was partially clothed in a blue pair of shorts, a pink skirt and a grey jacket. This was similar to the description of the clothing which N [....]  described the deceased as wearing on the day of her disappearance. She attempted to establish the time and cause of death by examining the clothing and the external features of the body to see whether there were any injuries or features of surgical or medical intervention. At the time of her post-mortem examination, she only had access to the SAPS 180 form. 

[103] Her findings in relation to the post-mortem examination conducted are contained in exhibit “E” and the chief post-mortem findings made by her are the following:

103.1   a history of being found decomposed as per SAPS 180 form;

103.2   the partially represented body of a female child with dismemberment of the upper body and relative preservation of the lower body;

103.3   plastic black cable ligatures present in the vicinity of the dismembered neck and around the ankles; and

103.4   evidence of advanced decomposition.

[104] The secondary post-mortem changes were the partially represented body, which showed advanced decomposition as manifested by moulding, skin slippage, skeletonisation and mummification. In addition, there were live and dead maggots present throughout the body. There was a circumferential black plastic cable ligature around the ankles and one in the vicinity of the disintegrated neck. The upper body, which included the head and neck, chest, partial abdomen and upper limbs were dismembered and completely fragmented from the relatively preserved lower half of the body.

[105] The facial structures were not fully represented and soft tissue structures were completely absent whilst bony structures were present. The skin of the orbits depicted well enucleated edges with jagged edges. The eyes, the eyelids and the eye lashes were absent. The neck and chest were completely dismembered and fragmented with the absence of soft tissue structures.

[106] Having regard to exhibits “F” and “L’, which are the scene 2 photographs she referred to photo 9 which depicted the circumferential ligature around the neck, which is depicted by a thin black strip extending to the left arm. Similarly, photos 14, 16, 17 and 18 also depict the posterior part of the neck with the ligature present. Photos 11, 12, 13 and 14 depict the circumferential black ligature around the ankles. Photo 9 also depicts the arms of the deceased on either side of her body.

[107] The upper limbs were dismembered from the body completely and displayed discoloration, moulding with fungus and skin slippage. There were no palpable fractures of the long bones present. An area of clear demarcation of preservation was evident - there was relative preservation of the lower abdomen from the area just above the umbilicus, which continued downwards to the genitalia and lower limbs with intact albeit decomposed organs. The skin edges and the represented anterior abdominal wall were firm and leathery and appeared shrunken and wrinkled. The lower limbs displayed features of decomposition such as areas of blistering, skin slippage and discoloration. There were no obvious scavenger injuries present.

[108] Dr Khan also confirmed that the post-mortem examination revealed that certain organs of the deceased had been removed manually. In respect of the orbital, nasal and aural cavities, the eyes were absent and there were no fracture dislocations of the nasal septum and the nasal and aural cavities appeared intact. The tongue, pharynx and larynx were absent and there were no palpable fractures of the mandible or maxilla observed. In respect of the neck structures the blood vessels, strap muscles and thyroid cartilage, laryngeal cartilage and hyoid bone were absent. The cervical spine was incomplete and separated. 

[109] Having regard to the chest, the thoracic cage was incomplete and separated. The ribs were not fully represented. However, there were no obvious fractures present on the ribs, which were represented. The diaphragm was absent. The oesophagus and its mucosa were absent as well as the trachea and bronchi. Both lungs were absent and the pericardial sac and heart were absent, as well as the carotid arteries, aorta and vena cava. 

[110] The peritoneal cavity was partially dismembered, the stomach was absent, as well as the intestines and mesentery. The gall bladder, liver and biliary passages were absent as well as the pancreas and spleen. The spinal column was dismembered and fragmented and not fully represented. However, there were no obvious fractures visible or palpable fractures of the represented bones. The spinal cord was not fully represented and dismembered and the represented cord was not exposed. In addition, the breast bone was missing. 

[111] When asked as to whether she observed any features of ligature marks or injuries on the arms, she indicated that when the body came to the mortuary it was in an advanced state of decomposition but having said that she did not observe any ligature marks or ligature imprint abrasions on the arms. She indicated that the advanced state of decomposition would have obstructed any injuries being present on the arms but despite this, she did not see any features of a ligature or any ligature abrasions on the hand.

[112] She was asked as to whether if the deceased’s arms were tied behind her back with cable ties prior to her death and she then demised and was left in that position, what one have expected to see on her hands if anything and she indicated that one must always remember that the body came in badly decomposed. But one would be able to see some imprint abrasions on the skin. The deceased’s hands were mummified so that meant that there was some relative preservation of her hands so you would definitely be able to see some imprint abrasions. 

[113] When she removed the ligature around the ankles of the deceased, she did see some ligature imprint abrasions.  She indicated that mummification is a late post-mortem change usually depicted by dry, leathery and hard skin. Mummification is not a common post-mortem finding and usually you see those type of decomposition changes if a body is exposed to either very hot or dry conditions or temperatures. She also identified the skin on the face and upper limbs as being mummified. 

[114] In paragraph 4 of her report in respect of the general appearance where she recorded that the facial structures were not fully represented, soft tissue structures were completely absent whilst bony structures were present. The skin of the orbits depicted well enucleated edges with jagged edges. The eyes, the eyelids and eyelashes were absent. 

[115] The upper limbs displayed features of discoloration, moulding with fungus and skin slippage. There was relative preservation of the lower abdomen from the area just above the umbilicus which continued downward to the lower limbs which were intact although decomposed and the skin edges and the represented anterior abdominal wall were firm and leathery and appeared shrunken and wrinkled. This was also a feature of mummification. She confirmed that from the waist all the way down appeared to be mummified. The lower limbs also displayed features of decomposition as they had areas of blistering, skin slippage and discoloration which were consistent with early features of decomposition as compared to the late features of mummification. 

[116] Dr Khan was requested to comment on the arms of the deceased and whether they had been tied behind her back with cable ties. She mentioned the abrasions on the arms as a result of a ligature and rigor mortis was present in the arms. If one considered photos 11 and 13 in exhibit “L”, in these photos you can see from the positioning of the body the left arm was actually held in extension and the right arm was flexed up, and this was due to the muscle stiffening and is why the limbs were in these positions. This led her to conclude that the way in which the arms are positioned in photo 11 was indicative that it was highly unlikely they were tied behind her back.

[117] Had it been so that the hands were tied behind the deceased’s back when she died and her body dumped the positioning of her hands would have been different. Usually one sees hands held in extension, the full extension of the hands behind the back with ligature marks on the wrist. She demonstrated this by standing with both hands secure behind her back. Then one sees the elbows flexed and placed behind the back and ligatures around the torso to the back which acts as restraints. Alternatively, there are restraints in the front of the body with hands extended and ligature marks on the limbs as well.

[118] Her second reason for saying it was highly unlikely the deceased’s arms were tied behind her back was based on her examination of the deceased’s arms. Albeit there were features of decomposition, there were no ligatures found, no imprint abrasions, and based on the positioning of the arms one was flexed and the other extended, there was nothing suggestive of the arms being bound at all let alone behind her back.

[119] She confirmed that the process of mummification and advanced and early stages of decomposition are affected by the conditions to which the body is subjected. The weather and temperature affects the process and in instances where one finds mummification, this is as a result of dry and hot weather conditions. The weather, temperature, foliage and coverage of the body would all affect how the decomposition changes in the body occur. One would expect the same decomposition changes on all parts of the body, not just the specified parts of the body or a particular limb. The place where the body is exposed to light, to the weather, to temperature, to foliage, and covering affects how the decomposition processes occur on the body.

[120] In this matter, considering exhibits “L” and exhibit “F” the scene photos, one can see the arms of the deceased and the head of the deceased and parts of the body from the waist downwards, but the area between the neck and the waist, all one can see are skeletal remains.

[121] Dr Khan explained how the rate of the factors affect the body and whether it varies from one part of the body to another. The abdomen has gases which causes it to be distended and also the red blood cells which causes the colour changes. The gases push up which results in the protrusion of the tongue and eyes and blood foaming at the nostrils. These are normal post-mortem changes and are just decomposing changes. In some instances, the stomach can also burst if there is no space for the gas to escape. One would still find the organs present although they would be soft and decomposed. The stomach does not always burst open as sometimes gas escapes through the mouth and the rectum preventing this from occurring.

[122] In respect of the deceased, the area around the eye with neatly cut out edges around the right orbit and the left orbit was jagged. The eyes itself and the tissues around it were absent. The orbits were enucleated and the eyelids, eyelashes and eyes were not present and this is due to being removed. She indicated that usually you see this kind of enucleated edges if a sharp object is used for example a knife, and if there is difficulty removing the eye, it can cause these jagged edges as well. This implied that the use of a knife meant that it was a manual removal of the eyes, eyelashes and eyes. 

[123] In relation to the suggestion that scavengers like dogs, predators or rats are responsible for these such injuries she indicated that in this instance it was not likely. One would see bite marks and the damage would not be as neat as in this victim. Here there was no torn up tissue or bridging and even smaller insects and flies also do not cause these kinds of injuries. There were no eyes or nerves present and one usually finds the eyelids present. She indicated that one can exclude insect infestation as well as predators or a scavenger as causing the injuries. If insects were present on the body, like for example maggots, you would still see tissue present or the remnants of tissue present. 

[124] A further indication that this was not a scavenger injury was the fact that the tongue and throat were not present. The tongue is one of the last organs to decompose and even at the stage of advanced decomposition one would expect to see the tongue present although it may have been softer, shrunken and smaller. In addition, if there was gas building up in the body it would have caused the tongue to protrude and she would have observed this if it happened, but this did not occur as there was no tongue.  

[125] Dr Khan confirmed that different parts of the body of the deceased appeared to be at different stages of decomposition. For example, from the upper torso those portions were mummified whereas from the waist downward toward the lower limbs, those parts displayed early stages of decomposition, which is signified by blistering and skin slippage. The rate of decomposition which one observes on the body does usually not vary from one part of the body to another. Usually one would expect to find a uniform post-mortem change throughout the body.

[126] One usually finds preservation of the limbs and decomposition usually starts from the stomach area and moves to the torso. The reason for this is that the body undergoes putrification changes which usually start within the abdomen as that is where there is a huge amount of gas and bacteria. So usually, one sees a build-up of that gas which causes distension and the abdomen becomes greenish and discolours because of the red blood cells exiting from the blood vessels and as they decompose, the colour changes.

[127] These gases further push up into the oesophagus and into the upper airway and that then results in the protrusion of the tongue, which is a feature one usually observes as well as protrusion of the eyes and bloody foam usually present at the nostrils. These are normal decomposition changes and if the body was just decomposing the organs would still be present although they would be decomposed, in other words they would be soft and also be discoloured. 

[128] In this instance in respect of the eyes, tongue and surrounding features, paragraph 4 of her post-mortem report concluded that:

‘The facial structures were not fully represented – soft tissue structures were completely absent whilst bony structures were present. The skin of the orbits depicted well enucleated edges with jagged edges. The eyes, the eyelids and eye lashes were absent.’

Referring to photo 12 of the post-mortem photographs she explained that what she meant when describing the eyes as being well enucleated with jagged edges she indicated that one can see very neat cut out edges of the right eye, it is very rounded and neat. It is also present in the left orbit and on photo 13, you can see around the orbit the upper and midorbit it is jagged.

[129] She confirmed that the eyes, eyelids, and eye lashes were manually removed and given that the skin of the orbits were well enucleated with jagged edges, it would indicate they were removed with a sharp object possibly a knife as this causes very neat edges and if there was difficulty removing those organs, a knife can also cause those jagged edges. The use of the knife meant that this was a manual removal.

[130] As it was common cause that the body of the deceased was found in a residential area albeit in a bush and with houses nearby, Dr Khan was asked to comment about whether or not predators, dogs or scavengers could have been responsible for removing the eyes and or other organs and causing the injuries to the body. She testified that with regard to large animals be it dogs or even rats, one usually finds bite marks accompanying these type of injuries. One would not expect the injuries to be neat as depicted in the photographs. The injuries would be very torn up so you would find very rough jagged edges and tissue bridging as well. 

[131] With regard to smaller insects and flies, although they are generally predisposed to laying eggs in open orifices, if the eyes were open, eggs could have been laid in the eyes and then subsequently maggots could have eaten away at the eye. But in this instance and having regard to the body of the deceased, it would not have been to this extent where there is absolutely no eyes or nerves present. Usually if maggots or flies were present and were responsible for eating the organs, they would usually still be eyelids and the wound itself would not be as neat as depicted, hence one can exclude the maggots and flies as being responsible for the injuries.

[132] When asked to specifically confirm whether or not she was excluding insect infestation as a cause of the injuries, Dr Khan commented that insects do eat away at soft tissues and they do have a pre-disposition for the eyes and the neck, which is from the neck upwards. But having regard to this injury with it just being isolated to the eye, it was very difficult to say that such injury was as a result of flies or maggots specifically with the absolute removal of the eye. With insect infestation, one would still expect some remnants to be there but there were no nerves connecting to the brain, which made insect infestation as the cause of the injuries as being unlikely.

[133] A proposition was put to Dr Khan which she agreed with. Namely that if there was a predator that had bitten into the area and removed the eye, that removal would not have been as neat as what appeared on the body of the deceased. It still would have left tissue, flesh and blood which would have caused the infestation of flies and subsequently maggots, but in this instance, there were absolutely no flies and maggots at all in the eye. Dr Khan indicated that there were maggots present at autopsy. The entire body was basically full of maggots but in the pictures what is depicted is a body washed away as they cannot examine the body with the maggots present.

[134] However, she made particular note of the eye area, that the eyes were particularly enucleated and with maggot injuries to the eye you would expect to find some remnants of tissue and with that infestation you see other structures also absent. This is what led her to conclude that insects were not responsible for the removal of the eyes. She confirmed that at paragraph 8 of her report she did not find the tongue, pharynx or larynx present and there were no palpable fractures of the mandible or maxilla. What this meant was that the tongue and other structures further down were not present at autopsy. 

[135] Bearing in mind that one is dealing with a body which was found with features of advanced decomposition, she was asked to comment on the likelihood of the tongue and surrounding areas having decomposed which would account for their lack of presence. Dr Khan indicated that when it came to decomposition one would expect to see a very uniform type of decomposition and one of the organs that is very resistant to decomposition is the tongue. The tongue is extremely muscular and it is one of the last organs to decompose. The tongue was not present so she could not comment as to whether it was decomposed but even if it were decomposed, she would have still expected to see the tongue present even in this advanced stage of decomposition. It would have been much softer and discoloured and shrunken but it would still have been present.

[136] When asked to comment on the pharynx and larynx and what she would have expected to see as part of the decomposition process, she indicated that the pharynx and larynx form part of the upper airway; the larynx is one’s voice box and further down the pharynx, which connects to the trachea and upper bronchi which then connects to one’s lungs. Lying anteriorly to the trachea, one has the air pipe and the oesophagus which runs all the way down. Particularly with the larynx and pharynx, one has supporting neck structures which also hold it in place and these were absent. 

[137] She indicated that for example, the head, the arms and from the waist downward, one would also expect there to be relative preservation of those areas as well. Decomposition occurs at a uniform rate based on what the body is exposed to so everything should actually have been uniform and there should have been relative preservation of the torso itself as well as the upper part of the abdomen, with the organs still present with the spine still intact. She would also still have expected to find skin on the body even though there were features of decomposition on the skin. 

[138] There would also still be soft tissue structures present as well as organs which would also have been preserved. When asked to proffer an explanation as to why from the neck downward until the waist all that remained were skeletal remains in comparison to the lower torso, she indicated that most of the internal organs were missing. Most of the organs from the chest, the heart, the lungs, bronchi, trachea and the upper part of the abdomen being the pancreas, gall bladder, intestines, liver, spleen and stomach were absent. From the kidneys or adrenal glands downward, those organs were present but in an advanced state of decomposition.

[139] From the time of demise, the body was exposed to the elements. Decomposition occurs at different rates but in a uniform manner. In the time frame from the time of death 13 June 2019 until 4 July 2019 when the body of the deceased was discovered, she would not have expected mummification and skeletonisation - these are very advanced decomposition changes which one normally sees after several months or years. This was just under a month and despite the weather conditions, insect infestation, the decomposition rate would have been uniform throughout the body, in other words, what one sees from the kidneys down, one would have expected to see other internal organs present albeit in some decomposing form.

[140] She testified that it was very difficult to determine exactly what one could attribute the irregular rate of decomposition to and the varying decomposition changes to the different parts of the body. There were several possibilities. The first could be a scavenger injury where a scavenger could have come and maybe attacked the torso but with that being said you would still expect to find some areas of soft tissue. So, if one considered the ribs - the ribs are completely clean. And that is very unusual for a scavenger or predator injury.

[141] Secondly, one sometimes sees an isolated part being completely skeletonised. This usually occurs if there was an acid or solvent being placed particularly on that area which could have actually stripped away the tissues or the organs. Thirdly, if there is sepsis. Sepsis is an infection which does cause a rapid decaying as compared to normal but that also would not be isolated to one part of the body because sepsis involves the entire body and one would see septic changes throughout the body. The fourth possibility is that of mutilation which is why there was an isolated area which was so badly decomposed compared to another and dismemberment.

[142] Dr Khan was then asked to comment on each of the four possibilities. She confirmed that a scavenger injury was unlikely because of how the ribs presented. In addition, having regard to parts of the body which remained like the head, arms and the waist downward or limbs, none of these showed any features or signs of predator or scavenger injuries. Even if the body did sustain a scavenger injury and had lain there in the elements for quite a while and continued to decompose, those injuries would be difficult to see. Looking at the arms and the legs of the deceased, there were no features of a scavenger but on the abdomen, the only thing that was present was the obvious demarcation and she would not have been able to see any scavenger injury on the abdomen given the advanced state of decomposition.

[143] She indicated that if a solvent or acid was poured in the area to strip away the area, if it is applied to the tissues, it would not make any difference whether the tissue was alive or dead at that time. As regards sepsis, if for example the deceased had severe bronchial pneumonia sepsis causes rapid decomposition so you would see it but it does not necessarily cause skeletonisation and you would still expect the organs to be present, just more decomposed than other organs. But sepsis would have to be ante-mortem. 

[144] Dr Khan was asked to comment about mutilation and the fact that she clarified that this meant cutting of the body or removal of organs and why this would cause more rapid decomposition in the area of removal as opposed to other areas. She testified that mutilation is exposure of the elements to an open body. If the body is open, then the body itself does produce bacteria post-mortem and those bacteria feed off the tissue that is present and it usually is in those areas that are open why you usually see that area has more rapid decomposition as compared to areas like the lymph or like the face.

[145] In light of the fact that all the internal organs and structures were absent, if they were removed manually Dr Khan indicated this would be consistent with why one only sees skeletal remains from the neck to the waist because of the rapid rate of decomposition that would have set in because the internal organs became exposed to the elements. She indicated that she would also have expected, particularly on the ribs for there to have been some tissue present but she would not necessarily expect to see the spine to be disintegrated in the way that it was on examination.

[146] In as much as there was removal of the organs, there should have still been relative preservation of the spine itself if it was only the organs that were removed. Having said that, the sternum being the breastbone was not present. That is the main structure to which your ribs are attached so your ribs attach anteriorly to the sternum and posteriorly to the spine, the thoracic spine and the vertebra. The absence of the sternum and the complete disintegration of the spine leans more toward it being a manual removal of the organs to get to the heart and lungs. 

[147] Dr Khan also indicated that another possibility was that when the body was transported from the scene, because it was so disintegrated, some bony structures were not brought along like for example the sternum. The sternum was a fairly large bone so she would have expected it to accompany the other parts of the body and/or its skeletal remains. 

[148] Dr Khan was asked to comment on manual strangulations and instances where a ligature is found present on the body in relation to a cause of death. She indicated that in most instances where she observes a ligature on a body it has been in instances of a hanging where there is a ligature present on the neck. This is also prevalent in instances involving manual strangulation with a ligature. In some instances, however, where ligatures are involved or strangulation is a cause of death, sometimes the ligatures are not found present on the body. Also in instances where the deceased was brought bound prior to actual death then usually one finds ligature imprint abrasions on the wrists and ankles and subsequently in those instances where the body or organs are dissected, one then examines for features of vital reactions to ascertain whether the deceased was alive at the time he/she was bound. 

[149] In most instances where ligatures are found around the ankle or the wrists, these are used as a form of restraint particularly when a person has died and the limb does not stay in place, one also finds ligatures used to restrain the limbs to keep them in place. She indicated that almost 100 per cent of the post-mortems she has performed when ligatures are used in instances of hanging or manual strangulation, then her finding would conclude that the ligature was the cause of death alternatively, the ligature mark had a correlation with the cause of death.

[150] In her experience, the majority of the time when there was a ligature present around the neck that was actually the fatal injury which caused the death, so the cause of death in her post-mortem report would have been recorded as “a ligature compression of the neck via suspension in the case of a hanging” or she would say “consistent with a strangulation via ligature.”

[151] Dr Khan was recalled by the court on 25 November 2021 to clarify certain aspects of her evidence. She confirmed that in the event of predators or scavengers attacking one usually observed bite marks at post-mortem. She could not see any evidence of bite marks. She confirmed that the reason for this was the advanced state of decomposition of the body. The decomposed parts were absent and therefore she could not comment regarding the bite marks on that part of the body because of the state of decomposition. 

[152] Prior to the body of the deceased being placed in the bush, if there were in fact bite marks, she would have seen it but due to the state of decomposition it was difficult to determine if there were bite marks present on the body of this deceased. 

[153]  In addition, she was asked to comment on Constable Mlotshwa’s evidence that the removal of the organs as in the specific instance of the deceased may be linked to a muti murder and she indicated that it was a possibility in her experience. 

[154] That then was the State case. The accused testified and called no witnesses.

The accused

[155] The accused testified in her defence and called no witnesses. In June 2019 she resided at N [....]  and was renting a cottage. She resided together with Y [....]   Mbatha and C [....]  C […]. Her children who were [....] and [….] years old at the time were residing with their paternal grandmother in Empangeni. Her husband resided in Meyerton, Johannesburg as he was seeking employment. Prior to June 2019, he was employed in Johannesburg but was retrenched in January of 2019.

[156] She was employed selling fruit and vegetables as a hawker in Pinetown. She earned approximately R4 000 per month. From her income, she paid R2 400 per month for rent, and prior to June 2019 her husband assisted her by providing her with R1 500 per month. She supported her children in Empangeni from the income she earned.

[157] N [....]  and the deceased were well known to her. Initially she rented a cottage at the same place where they were living in 2018. Her relationship with N [....]  was a very good one and they were good friends. She shared a close relationship with the deceased and she regarded the deceased as a child of hers. When she resided at the same cottage as them, she and the deceased used to spend a lot of time together and would often go to the shops together. In September 2018 she moved away into her own cottage. 

[158] On Wednesday, 12 June 2019 the deceased came to visit her at her home. She was on her way to the shop to purchase soap when she met the deceased in the company of another child. The deceased asked her to purchase chips for her and she then bought two packets of chips, one for her and one for the child who was in her company. This was at about 09h00. 

[159] They walked together after she had bought them chips and she informed the deceased that she would be going to Pick ’n Pay and that if she accompanied her she would buy her a big packet of chips as she normally did. She informed the deceased that she would first have to ask her mother for permission for her to accompany her to Pick ’n Pay. They both went to her home and she greeted N [....]  and told her that she wanted the deceased to accompany her to Pick ’n Pay and N [....]  indicated that she was alright with this and did not have a problem with the deceased accompanying her to Pick ’n Pay. The reason why she wanted the deceased to accompany her was for the deceased to help her carry the groceries.

[160] N [....]  asked what time she was thinking of going to Pick ’n Pay and she responded between 12h00 and 13h00 in the afternoon as she was going to do some washing and cleaning first. N [....]  gave permission for the deceased to accompany her and the arrangement was for the deceased to come to her house after 12h00 after she had finished cleaning and doing the washing. 

[161] On 12 June 2019 the deceased arrived at her house at approximately 14h00. At that time, she was still busy with the washing. They did not go to Pick ’n Pay as she had finished doing the washing and cleaning at about 16h30. They began watching Nigerian movies instead and she began plaiting the deceased’s hair until 18h00. Thereafter she accompanied the deceased to her home. 

[162] On 13 June 2019, she saw N [....]  again as she had taken flour to her at her home. N [....]  questioned her as to whether or not she and the deceased had gone to Pick ’n Pay and she informed her that they had not gone to Pick ’n Pay and that they were going later that day as she had finished her cleaning late. N [....]  once again gave permission for the deceased to go to Pick ’n Pay with her later that day. Once again it was arranged for the deceased to meet her at her home at the same time as the day before. 

[163] The deceased arrived at her home on 13 June 2019 as arranged and they sat down. She testified that at the time she was very stressed as she was experiencing financial difficulties. She was financially embarrassed as she owed a lot of people in the area money. U [....]  B[...] the loan shark whom M [....]   had referred to in her evidence, was owed R3 000 and women who worked with her as vendors were owed stokvel monies. 

[164] She indicated that she was in financial distress as her husband was not working and was involved in a car accident. Although she could not work out exactly how much she owed, the initial amount of interest that had accumulated was R1 500. She used to send between R1 200 and R1 500 to her children in Empangeni. With her husband being retrenched in January of 2019, it became more and more difficult for her to provide, as a consequence, she became financially distressed. 

[165] People whom she owed money to were threatening her, wanting to take her furniture as they wanted their money. She had borrowed money from U [....]  B[...] in April of 2019 and from the stokvel in February of 2019. In respect of U [....]  B[...], she ought to have paid interest at the end of every month, being the end of April, May and June even though the capital was not due. In addition, the money from the stokvel ought to have been paid by the end of February 2019. She had not repaid any monies to any of them as of June 2019. In addition, sales at her business was quiet and she was unable to accumulate any additional money to re-pay the loans.

[166] She confirmed that on 13 June 2019 she and the deceased did not go to Pick ’n Pay. She indicated she was down spirited and troubled about her financial difficulties, puzzled and confused and she was trying to think where she was going to get the money from. After the deceased arrived at her house, the deceased was sitting there watching TV. It was late in the afternoon shortly before 16h00 and she recalled how N [....]  shared with her that the deceased’s father was financially secure and they were well off and that he used to give N [....]  money. That is when it occurred to her that she could send an

SMS to the deceased’s parents demanding money. This would be her way to pay off her debts.

[167] To implement her plan, she needed to keep the deceased at her home. She then told her to wait and leave only after she had eaten. The deceased waited and ate and then after eating she wanted to go home. She tried stopping her from leaving by saying that she was not going to leave and that she will accompany her when she wants to go home. When she said this she observed that the deceased’s facial expression changed and she could see that she wanted to go. At that point in time the deceased looked like she wanted to cry. 

[168] She chastised the deceased and told her she must keep quiet and that if she dare cry she would hit her. She was concerned about the deceased crying as she did not want her neighbours to hear that the deceased was in her home. The deceased realised that she was serious about the warning as she observed this by the deceased’s facial expression. That is when she sat next to her on the couch.

[169] The deceased cried and she took her hand and placed it over her mouth. She was holding the deceased with the one hand around her shoulders and with the other hand, she was covering her mouth. The deceased tried to scream loudly and she panicked and took her to the kitchen. At the time she was still covering her mouth with the one hand and holding her with the other hand whilst the deceased was screaming and fighting and resisting. The deceased was trying to break loose from her hold and run away.

[170] The kitchen was the nearest place she thought to take her to as she wanted to find something to close her mouth so she would be quiet. She was panicking as the deceased was making a loud noise, screaming and she thought the neighbours would hear this. In the kitchen she looked for something to close the deceased’s mouth, but could not find anything. She wanted either a dish cloth or something she could use so she could keep her quiet. She did not find a dish cloth and then realised that there were cable ties in the kitchen cupboard which belonged to her husband. She removed a cable tie and fastened it around the deceased’s neck. 

[171] There was more than one cable tie in the packet in the cupboard. She used one cable tie, approximately 40cm in length around her neck. She held her from behind and put it around her neck and pulled it through the loop, but did not tighten it or fasten it. At that stage, she heard a noise, people were outside talking. She threaded the one side into the loop and looped it but did not pull it tight, and when she did this the deceased was still fighting and trying to get loose from her grip. 

[172] When she heard the noise outside, she made the deceased lie down on her side and fastened her legs with another cable tie which she tightened. Although she did this, the deceased was still moving as her hands were free. The reason she wanted to gather her legs and tie them was because the deceased wanted to run away and leave the house. She had already instructed the deceased how to lie down before she tied the cable tie around her legs. Her legs were apart and she was moving her legs at the time. She was kicking her legs up and down and her legs would come off the floor and go down again. 

[173] After she had fastened her feet, she then went outside to see what was going on, she closed the door and locked it. At the time the deceased was on her stomach lying on the floor. She was quiet and no longer screaming. She was still able to move her feet and her arms as they were not tied. She did not tighten the cable tie around her neck as she just wanted to keep her quiet and did not want to harm or injure her. The deceased was wriggling and wrestling on the floor but not screaming. 

[174] When she left to go outside she observed the deceased with her hands behind her neck. It appeared as though she was trying to loosen the cable tie with her hands. She wanted to see why the people were outside and making a noise as she thought they might have heard something going on inside the house and wanted to ensure that they did not hear anything. She walked past them and realised that they had not heard anything and pretended to go to the shop. She then turned around and came back and saw them again and went back into the house. She estimated that this took between five to seven minutes. 

[175] When she entered her house she found the deceased lying on her side and something white coming out of her mouth, it looked like saliva or foam. The deceased was no longer moving and nor was she making noises and her eyes were open. She did not know whether she was conscious. She was shocked and panicked and realised that it was about time for Y [....] and C [....]  to return from work. It was then that she took the deceased and placed her in a suitcase and went into the bush near her house, took her out of the suitcase and left her there. She indicated that she put her in a suitcase and took her to the bush as she did not want the people to find her in her house. 

[176] When asked what was going through her mind at the time when she found the deceased in that condition, she indicated that she was shocked, she could not think properly and a lot was going through her mind. She was shocked and scared and had not intended to harm her. 

[177] Later that evening when N [....]  came looking for the deceased, she told her that she had not seen the deceased on 13 June 2019 and that the deceased had not come to her house. That evening she, N [....]  and M [....]   went looking for the deceased.The reason why she accompanied them was that she did not want them to become suspicious of her. Thereafter she sent the deceased’s parents a SMS asking for money, approximately three times during the course of the evening. 

[178] She confirmed that on the evening of 13 June 2019, she slept in her house. She indicated that M [....] was mistaken when she said that she had slept at her home the whole night. On Friday 14 June 2019, she left for Johannesburg to go to her husband. Whilst in Johannesburg she was arrested by the Pinetown SAPS detectives and this was after her husband had received a telephone call asking him to meet the police at the police station. They both went to the Meyerton Police Station on the Sunday and she was thereafter transported to the Pinetown SAPS. 

[179] On 17 June 2019, a Monday, at approximately 10h00, police took her from custody to her home. They stood near M[….]’s house and called M [....]  . M [....] and members of the community arrived shortly thereafter. It was then that she heard M [....]   tell the police that she had dug the hole. That was when the police indicated that they thought the child was in the hole and that she must have placed the deceased in the hole. Members of the community including M [....]  were told to bring digging tools so that they could dig the hole to see if the deceased was inside it. 

[180] The accused confirmed that in exhibit “B” photos 17 and 18 is the hole that is behind a room which is the subject matter of the criminal charges she faces. This is the hole which the community dug on 17 June 2019. She disputed M [....]  ’s evidence that on Tuesday 11 June 2019 she dug the hole for the first time. She had asked her to dig a hole for her on two occasions, the first being in the month of April. The purpose of her requesting M [....]   to dig the hole was to enable her to burn dirt, shrubs, grass and filth. M [....] had initially dug the hole for her in April to knee height. She disputed M [....]  ’s evidence that she wanted her to dig a hole to waist height. She confirmed that M [....]   was present in April when she burnt the leaves and shrubs in the hole after she had dug it.

[181] The second occasion that M [....] dug a hole for her was in May as it rained and the hole closed. She dug the hole in May for the same reason to burn the dirt from her yard. Similarly, in May M [....]  was present when she burnt the dirt in her yard in the hole and in May the hole was once again knee height.  

[182] She disputed M [....]  ’s evidence that she had informed her on the Tuesday when she asked her to dig the hole that the reason for this was as she did not have a chance to take the dirt out to the main road to be collected by the municipality. She indicated that they kept the dirt in black bags which would be taken out by any person who left home first to the road where the municipality would pick up the dirt. She also disputed that M [....] worked for her the first time on the Tuesday, 11 June. She indicated that M [....]   used to come and do washing for her and on Sundays she used to do washing because she did not have any running water in her home. She would pay her R50 for doing her washing and would also bring meat and vegetables for her and give it to her as payment. 

[183] When she sent the SMS messages to the deceased’s parents she used Y [....]  ’s phone but the sim card belonged to her. She had two Vodacom simcards and a Cell C one. She regularly used a Vodacom sim card but the sim card which she used in Y [....]  ’s phone to send the SMS messages was not the one she usually used. The sim card which she placed in Y [....]  ’s phone to send the SMS messages was one of those you buy for R10 on the road which would have free airtime and free data.  

[184] The hole which M [....] had dug was searched for the body of the deceased but no member of the SAPS or members of the community dug the hole any further on 17 June 2019.

[185] During cross-examination of the accused it became evident that she shared a very close relationship with the deceased and both the deceased and her mother N [....]  trusted her implicitly. The deceased always wanted to be in her company. When they stayed at the same cottages, the deceased would come to her house often and inform her mother N [....]  that she was with the accused.

[186] For the most part, she agreed with N[....]’s evidence. She also confirmed that on 13 June 2019, after 18h00 N [....]  and M [....] came to her house looking for the deceased and she told them that she had not seen her. Earlier on she met C[…] on the road between 17h45 and 17h50 when she was going to purchase airtime and she also informed him that she had not seen the deceased. At the time she saw N [....]  and M [....]  , it was already dark and the street lights were on as well as the house lights.

[187] On 12 June 2019, she had finished her spring cleaning but when the deceased arrived at her home she was still busy doing the washing. The deceased sat inside watching movies and at approximately 15h00 the other children who were in the area joined them for vetkoek. She finished doing her washing outside between 16h00 and 16h30. After finishing her washing, she came inside and said to the deceased that it was too late for them to go to Pick ’n Pay and they would go the following day as she needed to cook.

[188] Whilst she was cooking she plaited the deceased’s hair in the benny and betty style as the deceased had seen the wool in her home and wanted her hair plaited. She finished plaiting her hair quite late and it was dark when she accompanied the deceased home. On 13 June 2019, the deceased arrived at her home in the afternoon at approximately the same time as the previous day. She was sitting watching movies and the deceased sat and watched movies with her together.

[189] At approximately 15h00 she informed the deceased that they were not going to go to Pick ’n Pay as she was feeling tired. She contradicted her evidence-in-chief that it was whist they were watching movies that she hatched the plan to kidnap the deceased and hold her for ransom. 

[190] It also became evident that she lied about the reason why she was taking flour to N[....]. N [....]  said that she did not have a need for flour and the accused indicated that she always took flour to N [....]  - this was not disputed by the accused during the course of cross-examination. The real reason in my view why she did so was to ensure that the deceased would attend at her home on 13 June 2019 on the pretext of taking her to Pick ’n Pay.

[191] In addition, she lied when she said that she was feeling low from the afternoon when she was sitting alone as during cross-examination she had been feeling down since she woke up that morning. She said that she had settled in her mind that she had taken a decision that the deceased would not go home on that day yet she also indicated she would return her once she had received the money. She indicated that she did not know at what time she formulated the plan. Even though she conceded that she had already formulated the plan in her head prior to her finishing her cooking at 17h30.

[192] She could not proffer an explanation as to why it did not occur to her to send the SMS to the deceased’s parents whilst she was cooking. When it was suggested to her that it would have taken some time for the deceased’s parents to acquire the ransom money, she indicated that she did not think of that and thought that they would have deposited it immediately and that the deceased’s father had the R20 000 in his immediate possession. 

[193] What became evident during the course of cross-examination of the accused was that as Spar closed at 20h00, it did not make sense as to why she had not by that stage sent the SMS. This did not tie in with her evidence that she had sent the message after 22h00 when they had returned from their search. Her plan involved the money specifically being deposited at Spar and in order for this to take place, the monies would have to be deposited before 20h00pm as that is when Spar closed. She indicated that even if the money was deposited at Spar, there was a facility where she could still withdraw the monies from Standard Bank. When it was pointed out to her that even though Standard Bank may have had the facilities to withdraw the money, the money still had to be deposited at Spar before 20h00, in order for her to make use of the Standard Bank facilities she remained silent and did not comment. 

[194] It was pointed out to her that if she planned to return the deceased once the monies had been paid, the deceased would certainly be able to identify her as her kidnapper and this conflicted with her explanation that she did not want people to know that she was the one who was responsible for her kidnapping and demanding the ransom. 

[195] She was asked how would she prevent the deceased from telling people that she was responsible and prevent herself from being arrested and she indicated that she knew that she would have to leave the area and start a new life and go far away. She was going to try and flee and see how far she could get away with it even after she had released the deceased. This explanation makes no sense and when it was suggested to her that that reason why she did not think she would be found out was because it was never her intention to return the deceased and was always her intention to kill her, she disputed this.

[196] She indicated that she was going to run away and did not think that she would be pursued by the police. She could not recollect when she purchased the sim card which she used to send the message to the deceased’s parents after 20h00 on the night in question. If she purchased it on the day she sent the message, she would certainly have remembered that and the fact that she did not remember was indicative of the fact that she did not purchase the sim card on the same day and must have purchased it quite some time before. She confirmed that at the time she finished her cooking at 17h30 she already had her plan in mind.

[197] When it was suggested to her that even if she did not insist that the deceased remain behind, the deceased would not have got up to leave as the deceased was comfortable with her and the day before had stayed quite late at her home, she disputed this and indicated that the reason why the deceased stayed late the previous day was that she was doing her hair. She disputed the suggestion that there was no need for her to tell the deceased not to go as she needed to create a version to explain why the deceased started to cry and not that she needed to tell her to stay.

[198] During the course of cross-examination, it also became evident that the accused, for the first time, mentioned that when the deceased began crying she took her to the kitchen to switch off the stove. She had not mentioned this before. She disputed that there was no need for her to discuss with the deceased her going home as the deceased knew that as with the day before, she would walk her home. 

[199] What also does not make sense is that the deceased trusted her and would not have any reason to fear her or cry. Why would she suddenly start to scream and cry unless she suspected the accused wanted to harm her?

[200] In addition, why would she use a cable tie to try and keep the deceased quiet. She had access to clothing in her home and a dishcloth yet she elects to keep her quiet by using a cable tie? 

[201] During cross-examination the accused was asked to demonstrate how she tied the cable ties around the deceased’s neck and ankles as her evidence on how she tied the cable tie around the deceased’s neck did not tie in with the post mortem photographs and the evidence of Dr Khan as to the positioning of the ligature around the deceased’s neck. 

[202]    It was evident that her explanation of how she tied the cable tile by merely looping it and not tightening it was not consistent with the photographs of the cable tie around the deceased neck as found at post mortem nor her evidence of what she found when she returned from going outside on the night of the incident. In addition, had she merely looped it as she indicated the deceased would have been able to loosen it and remove it from around her neck as her hands were not tied.  

Amendment to the charges in the indictment

[203] At the close of the State and defence case and before argument on the merits of the conviction, the State applied for an amendment to the charges in the indictment and an amendment to the summary of substantial facts. These related to counts 4, 5 and 6 to which the accused had tendered pleas of guilty. Mrs Naidu submitted that the amendments were to bring the charges in the indictment in line with the evidence that had been presented and with the accused’s plea. Mr Pillay indicated that he had no objection to the amendment.

[204] In this regard the provisions of s 86 of the CPA are applicable. The relevant portion of s 86(1) reads as follows:

‘Where a charge is defective for the want of any essential averment therein, or where there appears to be any variance between any averment in a charge and the evidence adduced in proof of such averment, or where it appears that words or particulars that ought to have been inserted in the charge have been omitted therefrom, or where any words or particulars that ought to have been omitted from the charge have been inserted therein, or where there is any other error in the charge, the court may, at any time before judgment, if it considers that the making of the relevant amendment will not prejudice the accused in his defence, order that the charge, whether it discloses an offence or not, be amended, so far as it is necessary, both in that part thereof where the defect, variance, omission, insertion or error occurs and in any other part thereof which it may become necessary to amend.’

[205] The application for an amendment was brought prior to the commencement of the argument on the merits and prior to judgment being delivered. In addition, I raised with Mr Pillay whether there would be any prejudice to the accused specifically her fair trial rights in the event of me granting such amendment. Mr Pillay confirmed that there would be no prejudice to the accused and in addition the proposed amendment accorded with the evidence presented specifically that of the accused and more so accorded with paragraph 24.3 of her written plea explanation in respect of counts 4,5 and 6 that on three different occasions she attempted to extort money from the parents of the deceased.

[206] The evidence and plea explanation established that in respect of count 5 the accused sent an SMS on 13 June 2019 to the deceased’s father M [....] B[....] N[....]and similarly on 14 June sent another SMS to the deceased’s mother N[....]. This accorded with the evidence of the accused as well as her plea explanation and she would suffer no prejudice in the event of the court granting such an amendment.

[207] In granting an amendment the court must consider whether the intended amendment is an amendment in terms of s 86(1) of the CPA. Something which destroys an existing case or replaces it with something different is not regarded as an amendment. The substitution of a charge is thus not an amendment within the meaning of s 86(1) as it would cause prejudice to an accused.

[208] In this particular instance the proposed amendment is one envisaged in terms of s 86(1) as essentially what is being proposed is an adaptation of an allegation to the evidence which has been presented. It is not a substitution in disguise of an amendment. In this instance the proposed amendment does not differ substantially from the original charge and corrects the dates together with the complainant in respect of the specific charge in the indictment.

[209] Considering the nature of the amendment and the evidence presented as well as the accused’s plea, I was satisfied that the amendment ought to be granted.

Issues

[210] The issues for determination in this matter are the following:

210.1   Whether in respect of counts 2 and 3 the accused planned to murder the deceased, did in fact murder her and remove her body parts in contravention of reg 25(a) of the National Health Act; >

210.2   Whether in respect of counts 1, 4 to 6 the accused is guilty on the basis of her guilty plea and/or the evidence led by the State in support of the convictions.

[211] In deciding these issues, it is perhaps useful at this juncture to remind oneself of the legal principles involved. In doing so, one must also consider the possible motive for the commission of the offences. Although motive is not relevant to the guilt or otherwise of an accused person, it is often used to demonstrate what prompted the commission of the offences in question. 

[212] I now turn to consider the legal principles involved. 

Legal principles and the test in a criminal matter

[213] It is trite that the State bears the onus to prove the guilt of the accused beyond reasonable doubt. In the event of the accused advancing an explanation which is reasonably possibly true, the benefit of the doubt has to be given to them and they ought to be acquitted.

[214] It has often been argued that what is meant by proof beyond a reasonable doubt is proof beyond all reasonable doubt. The State, so the argument goes, is required to eliminate every avenue which is inconsistent with the accused’s guilt or which is consistent with his or her innocence. However, our courts have indicated that this is not the true test and have rejected this approach time and time again as this would, inter alia, place the onus too high and would lead to defeating the purposes of the criminal justice system.

[215] This was referred to in S v Glegg^[1] in the headnote as follows: ‘The phrase “reasonable doubt” in the phrase “proof beyond reasonable doubt” cannot be precisely defined, but it can well be said that it is a doubt which exists because of probabilities or possibilities which can be regarded as reasonable on the ground of generally accepted human knowledge and experience. Proof beyond reasonable doubt cannot be put on the same level as proof beyond the slightest doubt, because the onus of adducing proof as high as that would in practice lead to defeating the ends of criminal justice.’

[216] The test was formulated by Malan JA in the decision of R v Mlambo as follows:^[2]

‘In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused. 

An accused’s claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case.’

[217] This approach, as decided in R v Mlambo has held to be consistent with the approach of the English courts as pronounced by Denning J in the decision of Miller v Minister of Pensions^[3] where the following was said:

‘. . .the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice.’

[218] Consequently, our courts have acknowledged that there is no obligation on the State to close every avenue of escape open to an accused. See: S v Phallo & others,^[4] R v Mlambo.^[5]

[219] In S v Shackell^[6] Brand AJA said the following:

‘…It is a trite principle that in criminal proceedings the prosecution must prove its case beyond reasonable doubt and that a mere preponderance of probabilities is not enough. Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused's version it true. If the accused's version is reasonably possibly true in substance the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused's version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true.’

[220] In assessing the evidence and whether or not the State has discharged the onus beyond reasonable doubt, it is trite that the evidence must be considered in totality and not in a piece-meal fashion. In S v Chabalala,^[7] Heher, AJA referring to S v Van Aswegen,^[8] held the following:    

‘…The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.’

[221] It is trite that the State bears the onus to prove the guilt of the accused beyond a reasonable doubt. There is no onus on an accused and an accused is entitled to be acquitted if it is reasonably possible that she or he may be innocent. See: S v Van der Meyden.^[9]  

[222] As the State relies in the main on circumstantial evidence it is perhaps useful at this juncture to set out the legal principles applicable to such evidence.

Circumstantial evidence

[223] In respect of circumstantial evidence the locus classicus is the decision of R v Blom.^[10]  Watermeyer JA held the following at 202-203:

‘(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.’

[224] As the burden of proof rests on the State, a fact in issue can be proved by circumstantial evidence alone, provided that the inference which the State pleaded is consistent with all the proved facts and no other reasonable inference can be drawn from those facts.

[225] Circumstantial evidence, can also however, sometimes be more compelling than direct evidence.^[11] The court in S v Musingadi & others^[12] quoted its approval of a passage from the authors Zeffertt, Paizes and Skeen The South African Law of Evidence at 94 which stated the following:

‘“. . .circumstantial evidence may be the more convincing form of evidence. Circumstantial identification by a fingerprint will, for instance, tend to be more reliable than the direct evidence of a witness who identifies the accused as the person he or she saw. But obviously there are cases in which the inference will be less compelling and direct evidence more trustworthy. It is therefore impossible to lay down any general rule in this regard. All one can do is to keep in mind the different sources of potential error that are presented by the two forms of evidence and attempt, as far as this is possible, to evaluate and guard the dangers they raise.’’’

[226] In coming to a decision as to whether proof beyond a reasonable doubt has been established by circumstantial evidence, a court is enjoined to consider the cumulative effect of all the evidence – it must not look at evidence implicating the accused in isolation to determine whether there is proof beyond reasonable doubt, nor should it look at exculpatory evidence in isolation to determine whether an accused’s version is reasonably possibly true. The correct approach is to consider all the evidence in the light of the totality of the evidence in the case.^[13] In doing so, the test is not whether each proved fact must exclude other inferences but the facts as a whole.  

[227]   The authors, Schwikkard and Van der Merwe^[14] in Principles of Evidence say the following in this regard:

‘In Rex v Blom it was said that in reasoning by inference in a criminal case there are two cardinal rules of logic which cannot be ignored. The first rule is that the inference sought to be drawn must be consistent with all the proved facts: if it is not, the inference cannot be drawn. The second rule is that the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn: if these proved facts do not exclude all other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct. This second rule takes account of the fact that in a criminal case the state should furnish proof beyond a reasonable doubt.’ (Footnotes omitted.)

[228] In R v De Villiers,^[15] Davis AJA pointed out that the test was not whether each proved fact excluded all other inferences, but whether the facts as a whole did so.  At 508 to 509 the court held the following: 

‘The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken.  It must carefully weigh the cumulative effect of all of them together, and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn.  To put the matter in another way; the Crown must satisfy the Court, not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as a whole is beyond reasonable doubt inconsistent with such innocence.’  

[229]   In assessing the cogency of the circumstantial evidence, Zulman AJA in S v Reddy & others^[16] said the following:

‘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”.’

[230] In S v Reddy^[17] the court further quotes Best on Evidence 10 ed 297 at 261 where it puts the matter as follows: 

‘“The elements, or links, which compose a chain of presumptive proof, are certain moral and physical coincidences, which individually indicate the principal fact; and the probative force of the whole depends on the number, weight, independence, and consistency of those elementary circumstances.  

A number of circumstances, each individually very slight, may so tally with and confirm each other as to leave no room for doubt of the fact which they tend to establish. . .. Not to speak of greater numbers, even two articles of circumstantial evidence, though each taken by itself weigh but as a feather, join them together, you will find them pressing on a delinquent with the weight of a millstone. . .. Thus, on an indictment for uttering a bank-note, knowing it to be counterfeit, proof that the accused uttered a counterfeit note amounts to nothing or next to nothing; any person might innocently have a counterfeit note in his possession, and offer it in payment. But suppose further proof to be adduced that, shortly before the transaction in question, he had in another place, and to another person, offered in payment another counterfeit note of the same manufacture, the presumption of guilty knowledge becomes strong. . ..”’

[231] The court^[18] quoted further from Lord Coleridge in R v Dickman - referred to in Wills on Circumstantial Evidence 7 ed at 46 and 452-60, where the following observations concerning the proper approach to circumstantial evidence was made:

‘“It is perfectly true that this is a case of circumstantial evidence and circumstantial evidence alone. Now circumstantial evidence varies infinitely in its strength in proportion to the character, the variety, the cogency, the independence, one of another, of the circumstances. I think one might describe it as a network of facts cast around the accused man. That network may be a mere gossamer thread, as light and as unsubstantial as the air itself. It may vanish at a touch. It may be that, strong as it is in part, it leaves great gaps and rents through which the accused is entitled to pass in safety. It may be so close, so stringent, so coherent in its texture, that no efforts on the part of the accused can break through. It may come to nothing - on the other hand it may be absolutely convincing. . .. The law does not demand that you should act upon certainties alone. . .. In our lives, in our acts, in our thoughts we do not deal with certainties; we ought to act upon just and reasonable convictions founded upon just and reasonable grounds. . .. The law asks for no more and the law demands no less.”’

[232] In Shange & others v S^[19] the full court of this division echoed these sentiments and referred to the extract from S v Musingadi with approval.  At paragraph 10 of the judgment the court held further:

‘…A court is always enjoined to examine all the evidence; it must neither look at evidence implicating the accused in isolation to determine whether there is a proof beyond reasonable doubt, nor should it look at exculpatory evidence in isolation to determine whether an accused’s version is reasonably possibly true.  The correct approach is to consider all the evidence “in the light of the totality of the evidence of the case”.’ (Footnote omitted.)

 

[233] In S v Shaw^[20] the court had regard to circumstantial evidence and at paragraph 106 of the judgment held the following:

‘Circumstantial evidence is any fact from which a fact in dispute may be inferred. Such facts have to be proved by direct evidence. Conclusions drawn from evidence not proven or admitted are speculation not inference. The challenge is to draw the most reasonable inferences from the proven facts to establish the guilt of the appellant beyond reasonable doubt, without overlooking the possibility of other equally probable or reasonably possible inferences.’ (Footnotes omitted.) 

[234] Further at paragraph 109 the court held the following:

‘…In a murder case in which the state has not established the cause of death and the guilt of the appellant rested on circumstantial evidence, the majority in the erstwhile Appellate Division held that other indications of an intent to kill had to be very strong if they are to make up for serious deficiency and leave no reasonable doubt. Inferences cannot be drawn from conjecture or speculation’. (Footnote omitted.)

[235] In paragraph 110 in referring to R v De Villiers^[21] the court held the following:

‘. . . a court should not consider each circumstance in isolation and draw inferences from each single circumstance. The onus on the state is not to prove that each separate item of evidence is inconsistent with the innocence of the accused, but that taken as a whole, the evidence is beyond reasonable doubt inconsistent with such innocence’. (Footnote omitted.)

[236] The court in the decision of R v Mthembu^[22] held:

‘Circumstantial evidence, of course, rests ultimately on direct evidence and there must be a foundation of proved or probable fact from which to work. But the border-line between proof and probability is largely a matter of degree, as is the line between proof by a balance of probabilities and proof beyond reasonable doubt. Just as a number of lines of interference, none of them in itself decisive, may in their total effect lead to a moral certainty (Rex v De Villiers (1944 AD 493 at p. 508) so, it may fairly be reasoned, a number of probabilities as to the existence of the facts from which inferences are to be drawn may suffice, provided in the result there is no reasonable doubt as to the accused’s guilt.’

[237] In R v Sibanda & others^[23] Beadle CJ dealt with circumstantial evidence as follows:

‘…The degree of certainty with which the individual facts must be proved in criminal cases must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt; it is sufficient if there are reasonable grounds for taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond reasonable doubt.’

[238] In S v Cooper & others^[24] the court considered the circumstantial evidence and the inferences to be drawn. The headnote reads as follows:

‘When triers of fact come to deal with circumstantial evidence and inferences to be drawn therefrom, they must be careful to distinguish between inference or speculation. There can be no inference unless there are objective facts from which to infer the other facts for which it is sought to establish. 

The rules of logic referred to in R. v Blom, 1939 AD 188, are to be applied by the triers of fact in respect of proved facts at the end of the trial, in order to see whether the guilt has been proved beyond a reasonable doubt and there is generally speaking no scope for the application by the Judge at the close of the case for the prosecution; at that stage the facts are not yet proved and he only has to determine whether a reasonable man might convict, not should convict. Indeed if there is more than one inference possible from the facts that are seen to be uncontradicted at the close of the case for the prosecution, then it is just the sort of evidence that should be referred to the triers of fact for decision.

[239] In the judgment Boshoff J^[25] held the following:

‘In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture [references omitted] …, the dividing line between conjecture and inference is often a very difficult one to draw, but is just the same as the line between some evidence and no evidence. One often gets cases where the facts proved in evidence – the primary facts - are such that the tribunal of fact can legitimately draw from them an inference one way or the other, or, equally legitimately refuse to draw any inference at all. But that does not mean that when it does draw an inference it is making a guess. It is only making a guess if it draws an inference which cannot legitimately be drawn; that is to say, if it is an inference which no reasonable man could draw.’

Assessment of the evidence of the witnesses and the accused

[240] Before dealing with the various counts and before determining whether the State has discharged the onus, it is useful to assess the evidence and demeanour of the witnesses who testified.

[241] During the course of the State’s case, the evidence of various witnesses was proffered in order to establish the charges against the accused and in addition, to support the State’s case that the accused planned to murder the deceased, murdered her and was responsible for the removal of her organs. 

[242] The first witness, C [....] C [….] (C [....] ) was the niece of the accused. During the course of her evidence and whilst in the witness stand, she did not make eye contact with the accused. I gained the impression from her demeanour and my observation of her that she was reluctant to testify against her aunt and did not want to answer questions which would implicate the accused. In addition, she confirmed during the course of her evidence that she had last seen her aunt at the time of the incident in June 2019. She appeared physically uneasy in the witness stand and only seemed to relax when the State advocate informed her that the purpose of her evidence was merely to provide details of the home they shared and what occurred on the day of the incident when she returned home from work.

[243] Although she was conflicted toward the accused, I gained the impression that she testified in an honest and forthright manner and did not gain the impression that she was under-playing or attempting to minimise anything that the accused had done. I found her an honest witness. Although she indicated that she was present at the store on the day the accused came to her and Y [....]  ’s workplace two weeks prior to the incident, Y [....]   was the one who conducted the conversation with the accused and not her. I have no reason to doubt her evidence that Y [....] made a report to her that the accused had made enquiries in relation to purchasing cable ties and/or cable clamps. Whilst I acknowledge that Y [....] did not testify and her evidence constitutes hearsay in this regard, what is confirmed by her was that there was a single cable tie in the kitchen draw since she commenced living with the accused in April 2019. 

[244] She would have no reason to falsely implicate the accused in relation to the enquiries made with Y [....] with regard to the cable ties and/or cable clamps and there was nothing from her evidence which would prejudice the accused’s rights to a fair trial should this be allowed. She admitted that the accused’s husband was employed as a welder and would often keep tools at their home, although she denied the presence of other tools in the kitchen drawer. She would not have any reason to lie about this. I must thus accept her evidence that there was a cable tie in the kitchen drawer shortly before the incident which she observed in April 2019 when she first came to reside with the accused.

[245] M [....] knew both the accused and the deceased and the parents of the deceased. They resided close to each other and she was also familiar with the nature of the relationship between the deceased and the accused. I gained the impression that she was an honest witness and did not get the impression that she lied in court or was embellishing her evidence. In my view, she was clearly mistaken about her evidence in relation to the accused sleeping at her home on the night of the incident. This is the only contradiction in her evidence which is worth mentioning. I did not gain the impression that she was lying and in my view such was an innocent mistake which she made. 

[246] In any event, Mrs Naidu is correct when she referred to the decision in S v Mkohle^[26] in which the court held that contradictions per se do not lead to the rejection of a witness’s evidence. Nestadt JA held the following:^[27]

‘Other contradictions were pointed to. Yet I do not think that they or the ones I have listed materially affect the credibility of the persons in question. Contradictions per se do not lead to the rejection of a witness’ evidence. As Nicholas J, as he then was, observed in S v Oosthuizen 1982 (3) SA 571 (T) at 576-B-C, they may simply be indicative of an error. And (at 576G-H) it is stated that not every error made by a witness affects his credibility; in each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness’ evidence. In my view, no fault can be found with his conclusion that what inconsistencies and differences there were, were “of a relatively minor nature and the sort of thing to be expected from honest but imperfect recollection, observation and reconstruction’’.’

[247] Her evidence serves to corroborate the evidence of N [....] as well as the accused, that after they conducted the search for the deceased and returned to N[....]’s home, whilst they were all there, N [....]  received an SMS message on her cellphone as she testified to. M [....] read the message apart from the accused and confirmed that the demand was for money for the safe return of the deceased. In addition, she also confirmed that the accused went to the toilet and after her return, shortly thereafter, N [....]  received the SMS message. 

[248] M [....]  ’s evidence is important as she indicated that the accused paid her to dig the hole and was insistent that it had to be done on the Tuesday immediately prior to the deceased going missing. In fact, her evidence was that the accused came looking for her on the Tuesday to dig the hole. She was also adamant that she dug the hole to knee height and it was on the instruction of the accused that she then dug it deeper to waist height. She also confirmed that the accused assisted her to remove the rubble and stone from the hole when she became tired.

[249] Dr Khan was an extremely neutral witness who testified in a forthright and honest manner. The importance of her evidence related to what she found during the course of the post-mortem examination. It is clear from her evidence that her findings were consistent with certain of the organs being removed from the body of the deceased, although she could not say for what purpose. In addition, she excluded the possibility and probability, in my view, of the organs having being removed by scavengers or other persons. In addition, she correctly made concessions when called upon to do so by Mr Pillay but more importantly, did not attempt to determine a cause of death or attempt to fix the time of death given the various stages of decomposition of the body and her findings in this regard.

[250] Constable Mlotshwa in my view, also testified in an honest manner, did not embellish her evidence, but merely placed the facts before the court relating to the nature of the bush in which the body of the deceased was found and also the distance from the bush to where the home of the accused was. In addition, her evidence is crucial in relation to the purpose for which organs are removed and her experience conducting investigations specifically that the nature of this investigation involved human trafficking in body parts was not challenged. In addition, she confirmed that the hole as depicted in the photographs is the hole which they found on the scene and was dug up subsequently when it was thought the body of the deceased was buried therein.

[251] N [....]the mother of the deceased, as well testified in an honest manner. She understandably displayed emotion when testifying regarding her daughter and her being present when the body was discovered. I also gained the impression that she did not embellish her evidence in relation to the accused and did not try and paint the accused in a bad light when she testified. In addition, there did not appear to be any recrimination on her part for the accused and she merely testified about the facts as they unfolded in relation to her involvement in the search for the deceased, the receipt of the SMS messages and the identification of her daughter’s body. 

[252] Her evidence in no way can be seen to cast blame in the direction of the accused either. The fact that she did not want to falsely implicate the accused or embellish her evidence in relation to the accused in any way, is evident from the fact that during crossexamination she conceded that she was present when the police found the accused at her home in the early hours of the morning on 14 June 2019 at 02h45. This evidence differed from M [....]  ’s evidence and in my view is clearly indicative of the fact that she told the truth.

[253]    The accused did not impress me as a witness. I observed that the State advocate allowed Mr Pillay a lot of leeway when it came to the accused testifying and he led her evidence for the most part without any objection from Mrs Naidu. The accused did not impress me as a good witness. During the course of cross-examination, it became selfevident that she was dishonest, evasive and was not prepared to answer direct questions posed to her. 

[254] She was not an honest witness in relation to when she formulated this plan and what she intended to do. This is clear when one has regard to her evidence and questions posed by the court and Mrs Naidu as to what she intended to do should the deceased’s parents not pay the ransom demand. The deceased would have identified her and everyone would have known that it was she who had kidnapped and kept her against her will. 

[255] The accused in my view is an extremely conniving and deceitful witness whose actions were carefully planned and thought out. Why else would she arrange to keep the deceased out late the day prior to her disappearance- if not to remove suspicion from herself.

Analysis

[256] I now propose to consider each of the counts in the indictment and the evidence pertaining thereto. In doing so I take into account that the accused is the only one who knew that the deceased had died and where she disposed of the body of the deceased. Although the body of the deceased was found in close proximity to her home, it is common cause that several searches were conducted by neighbours and members of the community in the vicinity of her home yet no one encountered the body of the deceased. This is so even though the investigating officer indicated that the bush and shrubbery in which the body of the deceased was found was often used by drug addicts and those engaged in nefarious activities. 

Count 1: Kidnapping

[257] “Kidnapping is defined as the unlawful and intentional deprivation of a person’s freedom of movement and if such person is under the age of 18 years, the custodians of their control over their child.^[28] Child stealing has also been included in the crime of kidnapping and as a consequence, kidnapping has assumed a dual character. It may infringe either of two interests, namely a person’s freedom of movement or a parent or custodian’s control over a child.

[258] Where a child is removed without either his or her own consent, or the lack of consent of his or her parents’, both these interests are of course infringed. For the crime to be committed, it is sufficient if X intend to deprive Y of her freedom of movement or Y’s parents or custodians of their control. 

[259] In relation to the deprivation of freedom of movement, the removal is usually effected by force but forcible removal is not a requirement. In this regard, I refer to the decision of S v Fraser²⁹ where the court indicated that kidnapping did not, by its nature, imply violence and not every case of kidnapping was a violent offence. As force is not an element of kidnapping, sometimes the removal can be effected by craft or cunning. See in this regard R v Long (2)^[29] and S v Levy & another.^[30]

[260] The authorities are clear that where a minor is lured under false pretences and deprived of their freedom of movement against the wishes of their guardian such is defined as kidnapping.”^[31] The accused who pleaded guilty to kidnapping confirmed that she had arranged to meet with the deceased on the pretext of taking her to Pick ‘n Pay to purchase her chips. Whilst the deceased was at her home she allegedly hatched this plan to extort money from her parents. It is common cause on the facts presented that she prevented the deceased from leaving her home so much so that when the deceased started crying and attempted to leave and fought her as she was being held against her will, the accused tied her feet with a cable tie and in order to keep her quiet tied one around her neck.

[261]  I am satisfied on the available evidence of the accused and the State witnesses, that the accused deprived the deceased of her freedom of movement and also deprived her parents of the control of their child. Consequently, the State has established beyond reasonable doubt the evidence to sustain a conviction on count 1.

Count 2: Murder   

[262] In dealing with this count I have considered the entire mosaic of evidence presented by the State and the defence. This includes the medical and forensic evidence as well as the fact that the last person the deceased was seen with was the accused before she disappeared.

[263] The accused denies that she unlawfully and intentionally killed the deceased. The State on the other hand alleges that the accused did murder the deceased and such murder was planned and premeditated. Mrs Naidu submitted that in determining the accused’s guilt one must consider the test applied by the courts in determining factual and legal causation.

Factual and Legal Causation 

[264] Among the issues which arose in determining the guilt or otherwise of the accused in respect of count 2 related to whether the actions of the accused in restraining the deceased led to or caused her death. This was as the exact cause of death could not be determined by Dr Khan given the advanced state of decomposition of the body of the deceased.

[265] Although Dr Khan indicated that a ligature in the form of a cable tie was found around the neck of the deceased and this is usually indicative of a cause of death, in this instance she indicated that she would not speculate about the exact cause and time of death.

[266] Factual and legal causation was considered by the Supreme Court of Appeal in the decision of Nohour & another v Minister of Justice and Constitutional Development^[32] where the court held the following: 

‘[15]  As it had been said, the court a quo found that the elements of fault and wrongfulness had been proved. What remained was proof of factual and legal causation. As far as factual causation is concerned the sine qua non test applies. Legal causation entails an enquiry into whether the alleged wrongful act (wrongful omission to disclose deviations) is sufficiently closely linked to the harm for legal liability to ensue. Generally, a wrongdoer is not liable for harm that is too remote from the conduct alleged or harm that was not foreseeable. Remoteness of damage operates along with the requirement of wrongfulness as a measure of judicial control in respect of the imposition of delictual liability. It, therefore operates as a “long stop” in cases where most rightminded people will regard the imposition of liability in a particular case as untenable, despite the presence of all other elements of delictual liability.

[16] Legal causation is resolved with reference to public policy. For that reason the elements of legal causation and wrongfulness will frequently overlap. They nevertheless remain conceptually distinct. The result is that, even if conduct is found to have been wrongful (or even negligent, for that matter), a court may still find, for other reasons of public policy, the harm flowing therefrom was too remote for the imposition of delictual liability. The traditional tests for determining legal causation (reasonable foreseeability, adequate causation, proximity of the harm, etc) remain relevant as subsidiary determinants. These traditional tests should be applied in a flexible manner. They should be tested against considerations of public policy as infused with constitutional values.   Insofar as legal causation is concerned, every matter must be determined on its own facts. In the consideration of legal causation or wrongfulness, public policy considerations, infused with the norms of our constitutional dispensation, dictate that, even if the prosecutor suffered from negligent omission, legal liability may ensue if the harm was foreseeable and is not too remote.’ (Footnotes omitted.)

[267] Further at paragraph 17 the court held: 

‘Whether an act or omission is the proximate cause of harm depends on the conclusion drawn from the available facts and the relevant probabilities. Similarly, the conclusion, as to whether a causal link exist between the wrongdoer’s conduct and the harm alleged, is drawn from the facts, the evidence before court and the relevant probabilities in the circumstances. In Minister of Police v Skosana, this court expressed itself regarding the test for factual causation in the following terms: 

“Causation in the law of delict gives rise to two rather distinct problems. The first is a factual one and relates to the question whether the negligent act or omission in question caused or materially contributed to . . . the harm giving rise to the claim. If it did not, then no legal liability can arise and cadit quaestio. If it did, then the second problem becomes relevant, viz. whether the negligent act or omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether, as it is said, the harm is too remote. This is basically a juridical problem in which considerations of legal policy may play a part.”’ (Footnote omitted.)

[268] The court expressed its views on factual causation at paragraph 18 of the judgment as follows:

‘Factual causation in delict is also determined by applying the but-for test. This test asks whether, but for defendant’s negligent conduct, the plaintiff’s harm would not have occurred. The but-for test requires the court mentally to eliminate or think away as much of the defendant’s conduct as was unreasonable, and to ask hypothetically whether the plaintiff would still have suffered the harm had the defendant acted reasonably. If the harm would not would have “not” been suffered, factual causation is established; if the harm “would” have occurred anyway, the required causal link is absent. Courts exercised common sense when applying this test. Nugent JA, in Van Duivenboden, held that the first enquiry is whether the wrongful conduct was a factual cause of the loss. The second is whether in law it ought to be regarded as a cause. The same test was formulated slightly differently by Corbett CJ in International Shipping as follows: 

“The first is a factual one and relates to the question as to whether the defendant’s wrongful act was a cause of the plaintiff’s loss. This has been referred to as factual causation. The enquiry as to “factual causation” is generally conducted by applying the so called “but-for test”, which is designed to determine whether a postulated cause can be identified as a causa sine qua non of the loss in question.  In order to apply this test one must make a hypothetical enquiry as to what probably would have happened but for the wrongful conduct of the defendant. This enquiry may involve the mental elimination of the wrongful conduct and the substitution of a hypothetical course of lawful conduct and the posing of the question as to whether upon such an hypothesis plaintiff’s loss would have ensued or not. If it would in any event have ensued, then the wrongful conduct was not a cause of the plaintiff’s loss; aliter, if it would not so have ensued. If the wrongful act is shown in this way not to be a causa sine qua non of the loss suffered, then no legal liability can arise.  On the other hand, demonstration that the wrongful act was a causa sine qua non of the loss does not necessarily result in legal liability. The second enquiry then arises, viz whether the wrongful act is linked sufficiently closely or directly to the loss for legal liability to ensue or whether, as it is said, the loss is too remote. This is basically a juridical problem in the solution of which considerations a policy may play a part. This is sometimes called “legal causation”. In other words, the test of factual causation is simply whether the relevant act of omission was a necessary condition (conditio sine qua non) of the event in question.’ (Footnotes omitted.)

[269] In Tembani v S^[33] Cameron JA writing for the full court had to consider the question of causation in circumstances where an accused had been convicted of murder on the basis that he had shot the deceased. Part of the defence which was common cause was that of medical negligence the appellant pleading that: ^[34]  

‘whether an assailant who inflicts a wound which without treatment would be fatal, but which is readily treatable, can escape liability for the victim’s death because the medical treatment in fact received is sub-standard and negligent.’ 

In deciding this issue the aspect of causation in relation to the count of murder was considered. The court held the following:^[35]

‘It is now well established that a two-stage process is employed in our law to determine whether a preceding act gives rise to criminal responsibility for a subsequent condition. The first involves ascertaining the facts; the second imputing legal liability. First it must be established whether the perpetrator as a matter of fact caused the victim’s death. The inquiry here is whether, without the act, the victim would have died (that is, whether the act was a conditio sine qua non of the death).

But the perpetrator cannot be held responsible for all consequences of which his act is an indispensable pre-condition. So the inquiry must go on to determine whether the act is linked to the death sufficiently closely for it to be right to impose legal liability. This is a question of law, which raises considerations of legal policy.’ (Footnotes omitted.)

[270] Following on the decision in S v Mokgethi^[36] the court took the view that the ultimate question to be decided is whether there is a sufficiently close link between the act and the consequence.^[37]  The court held that the negligent and unreasonable conduct of the victim himself interrupted the chain of causation as a consequence of which the appellant escaped liability. This case concerned a victim’s own unreasonable and negligent failure to take self-care after he had recovered from the fatal attack which was not considered the immediate cause of death. Mokgethi’s approach to the determination of legal liability applied as the court adopted what Van Heerden JA called a ‘supple’ or ‘elastic yardstick’ for determining whether policy considerations require that legal responsibility should be imputed.’^[38] 

[271] In my view the evidence establishes liability on the part of the accused for the deceased’s death applying the test for both factual and legal causation. But for the accused placing the cable tie around the neck of the deceased she would not have died.

The accused’s version that she only did so to keep her quiet and only looped the cable tie falls to be rejected. This is so if one has regard to the improbability of her evidence in this regard when she was cross-examined, specifically how she placed it on the neck of the deceased. We know from the post-mortem photographs that the cable tie was not looped as she described but pulled through and tightened.

[272] In addition the accused’s evidence was that when she placed it around the deceased’s neck she quietened. We know that when she returned from going outside she found the deceased lying on the floor, quiet, not moving with her eyes wide open and also frothing at the mouth. The only inference to be drawn is that the cable tie was tied tightly around her neck that she was unable to breathe and it strangled her. This would account for her frothing at the mouth and the whitish foam she described.

[273] This would also be consistent with Dr Khan’s evidence that where ligatures are found on a body they are linked to the cause of death. 

[274] I am mindful of the fact that Dr Khan who performed the post-mortem of the deceased could not establish the exact cause and time of death and it is perhaps useful at this juncture to deal with some of the relevant case law in respect of the exact cause of death and how it impacts on inferential reasoning.

[275] This was the subject matter of the decision in S v Maqubela.^[39] The appeal court in deciding on the weight to be attached to such evidence considered the onus and the proof required. Reference was made to the decision in Michael & another v Linksfield Park Clinic (Pty) Ltd & another^[40] in which the court emphasised the distinction that must be drawn between the scientific and judicial measures of proof when one is dealing with expert scientific evidence.

[276] The court held the following:^[41]

‘Finally, it must be borne in mind that expert scientific witnesses do tend to assess likelihood in terms of scientific certainty. Some of the witnesses in this case had to be diverted from doing so and were invited to express the prospects of an event's occurrence, as far as they possibly could, in terms of more practical assistance to the forensic assessment of probability, for example, as a greater or lesser than fifty per cent chance and so on….’

[277] This essential difference between the scientific and the judicial measure of proof was aptly highlighted by the House of Lords in the Scottish case of Dingley v The Chief Constable, Strathclyde Police^[42] and the warning given at 89D-E that:

‘One cannot entirely discount the risk that, by immersing himself in every detail and by looking deeply into the minds of the experts, a judge may be seduced into a position where he applies to the expert evidence the standards which the expert himself will apply to the question whether a particular thesis has been proved or disproved – instead of assessing, as a judge must do, where the balance of probabilities lies on a review of the whole of the evidence.’

[278] As stressed by the Supreme Court of Appeal in S v Maqubela:^[43]

‘The scientific measure of proof is the ascertainment of scientific certainty, whereas the judicial measure of proof is an assessment of probability.’

[279] On the probabilities, in my view but for the accused tying the cable tie around the neck of the deceased, she would not have died of manual strangulation.

[280] In order to establish whether a murder was premeditated our courts have indicated that the facts of a particular matter play a pivotal role in such determination. 

[281] In Montsho v S^[44] the Supreme Court of Appeal held that the facts of the matter determine whether the crime was premeditated:

‘[13] In the view I take of the matter, I do not consider that there is any benefit to be derived, on the facts of this case, in formulating a general definition of whether the phrase “planned or premeditated” denotes a single concept. The inquiry as to whether or not any given facts would at the very least sustain an inference to be drawn from them as to whether or not an accused had manifested a plan or premeditation to commit the offence in issue can properly be determined on a case by case basis. Thus the circumstances in which a crime was committed and the peculiar facts of each case will determine whether or not the commission of the crime was planned or premeditated.’

[282] That there is no definition of what is meant by premeditated murder is evident from S v Raath.^[45] At paragraph 16 of the judgment, the court stated that there is no statutory definition for premeditated murder, and thereafter laid down its interpretation of premeditation as follows:

‘[16] Planning and premeditation have long been recognised as aggravating factors in the case of murder. See S v Khiba 1993 (2) SACR 1 (A) at 4; and S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220) at para 34. As Terblanche Guide to Sentencing in South Africa 2 ed states at 6.2.2, planned criminality is more reprehensible than unplanned, impulsive acts. However, there must be evidence that the murder was indeed premeditated or planned. See for example S v Makatu 2006 (2) SACR 582 (SCA) at paras 12 - 14. The concept of a planned or premeditated murder is not statutorily defined. We were not referred to, and nor was I able to find, any authoritative pronouncement in our case law concerning this concept. By and large it would seem that the question of whether a murder was planned or premeditated has been dealt with by the court on a casuistic basis. The Concise Oxford English Dictionary 10 ed, revised, gives the meaning of premeditate as “to think out or plan beforehand” whilst “to plan” is given as meaning “to decide on, arrange in advance, make preparations for an anticipated event or time”. Clearly the concept suggests a deliberate weighing-up of the proposed criminal conduct as opposed to the commission of the crime on the spur of the moment or in unexpected circumstances. There is, however, a broad continuum between the two poles of a murder committed in the heat of the moment and a murder which may have been conceived and planned over months or even years before its execution. In my view only an examination of all the circumstances surrounding any particular murder, including not least the accused's state of mind, will allow one to arrive at a conclusion as to whether a particular murder is “planned or premeditated”. In such an evaluation the period of time between the accused forming the intent to commit the murder and carrying out this intention is obviously of cardinal importance but, equally, does not at some arbitrary point, provide a ready-made answer to the question of whether the murder was “planned or premeditated”.’

[283] It is also clear from the authorities that planning in advance is not necessary for a court to conclude that a murder was premeditated. In Kekana v S^[46] it was held that planning long in advance is not necessary:

[13]In my view it is not necessary that the appellant should have thought or planned his action a long period of time in advance before carrying out his plan. Time is not the only consideration because even a few minutes are enough to carry out a premeditated action.’ 

[284] As can be seen from the authorities, whether or not a murder is planned or premeditated, is determined upon a consideration of the facts of a particular matter. In  my view, the following facts are relevant to the issue as to whether, or not it could be said, that the murder of the deceased by the accused was planned or premeditated.

[285] Turning now to establish whether the State has proved, not only that the accused murdered the deceased but also that such murder was planned and premeditated.

[286] The following emerges from the facts. The accused was experiencing financial difficulty and she owed many people money and they were demanding the monies owed be repaid. She shared a close relationship with the deceased and the deceased’s mother did not have cause for concern as she spent a lot of time with the deceased. N [....]  had shared with the accused that their family were well off and that the deceased’s father provided well for them. 

[287] The niece of the accused indicated that when she and her sister first came to reside at the home of the accused there was a packet with a cable tie in a kitchen unit drawer. She was not in a position to dispute whether or not the cable tie had been left by the deceased’s husband but in the greater scheme of things this matters not. 

[288] C [....]  indicated that approximately two weeks prior to the disappearance of the deceased the accused attended at their work place and spoke to Y [....] . When she questioned Y [....] as to what the accused had come looking for, Y [....] informed her that the accused had come looking for cable ties or cable clamps. Although her evidence in this regard as to what she was informed on questioning Y [....] is hearsay, the importance of the evidence is that she had previously seen a single cable tie in the drawer of the kitchen unit.

[289] From the post-mortem report we know that there were two ligatures or cable ties found on the body of the deceased, one around her ankles and one around her neck. The only inference to be drawn from this is that at some stage the accused acquired more cable ties, whether she did so on the day that she attended at their workplace is not relevant for the purposes of the State’s case, but the inference to be drawn is that at some stage prior to the murder of the deceased she must have acquired more cable ties, as according to Y [....] there was only a single one in a drawer of the kitchen unit.

[290] We know from the evidence of N [....]  that on both of the occasions that the deceased went to the home of the accused in the week prior to her death, it was at the request of the accused. On the first occasion she attended at the home of N [....]  and asked if the deceased could accompany her to Pick ‘n Pay to assist her in carrying her groceries. She also indicated that she would ensure she would purchase a big bag of chips for the deceased. We know that when she encountered the deceased and her friend walking on the road, she had purchased a small packet of chips for each of them. She had promised the deceased that she would buy her a big packet of chips when they went to Pick ‘n Pay.

[291] On the first occasion that the deceased visited the accused at her home she remained there quite late and the accused accompanied her home. This was on the understanding that they would have gone to Pick ‘n Pay for the deceased to assist her to carry her groceries. However, on this occasion they did not go anywhere and remained at her home watching Nigerian movies while she plaited the hair of the deceased. 

[292] On the second occasion we know that on the morning of the deceased’s disappearance the accused attended at N [....]’s home and brought her flour. The deceased had informed her mother the day before that the accused was bringing flour to her. N [....]’s evidence was that she did not need flour as she did not use it and informed the deceased to tell the accused that she need not bring it. However, the accused arrived at her home on the morning of the deceased’s disappearance and gave her the flour. She did not want to be rude and accepted this. During the course of this conversation we know that the accused reminded her that the deceased ought to come to her home in the afternoon for her to accompany the accused to Pick ‘n Pay to purchase her groceries. 

[293] In my view the accused went to the deceased’s home to ensure that the deceased came to her home on the second occasion on the pretext of taking flour for them. According to the accused, on this same morning of the deceased’s disappearance the accused confirmed during cross-examination that she had woken up feeling down and depressed. Her evidence in chief however was that she had only felt that way whilst sitting at home in the afternoon when the deceased arrived there.

[294] Despite feeling ‘depressed’ she had the foresight to take flour to N [....]  that very morning and remind her to send the deceased to her home. 

[295] We know and it is common cause that the accused was experiencing severe financial difficulties. She owed loan sharks money as well as members of her stokvel. She had also indicated that people were threatening her with serious harm and injury should she not repay them the money. This was also confirmed by M [….] who indicated that some months prior to the deceased’s disappearance she had taken the accused to a loan shark, U [....] B[...], for her to loan monies from him. This was as the accused’s husband was no longer employed and she needed money to ensure that he was discharged from hospital.

[296] We know that the deceased arrived at the accused’s home and was sitting and watching television. She indicated that at that moment she was depressed and whilst the deceased was sitting in her lounge she had a plan to extort money from her parents and keep her there. The problem with this version is that when the accused was questioned she indicated that it was always her intention for the deceased to go home once she had received the money. However, on closer questioning, she could not explain what would happen if the parents of the deceased did not pay her the money and whether in fact she would release the deceased and allow her to go home. 

[297] It was also pointed out to her that this made no sense as the deceased would be able to identify her and pin point her as the person who had kidnapped her and held her against her will. She indicated that she had always intended to leave the area so as not to be identified. This makes no sense in light of the fact that her family knew where she lived and she would not be able to successfully flee the area.  

[298] What is further problematic about her version is that she did not send the sms for the ransom whilst the deceased was with her. She only did so after the deceased had died and she had disposed of the body. This despite her evidence that she always intended to send her home and her knowing full well that the banks at which she would withdraw the funds closed at 20h00. 

[299] I am satisfied on the facts presented that the accused was not depressed and did not formulate this idea to demand ransom and kidnap the accused on the spur of the moment. Her conduct suggests otherwise. 

[300]   Even the act of getting M [....] to dig the hole is indicative that the murder was premeditated. One can only speculate about the reason for this-it could have been to throw the police off guard, clear her as a suspect and her involvement as no body was found in the hole, and to prevent the body of the deceased being detected sooner. The fact remains that she had the foresight to get M [....] to dig the hole in the week of the deceased’s disappearance.

[301] Her conduct and actions in the days and weeks preceding the death of the deceased, specifically the week of her death were goal directed and purpose driven and are indicative of the fact that the murder of the deceased was premeditated. In addition, her conduct in disposing of the body of the deceased is also indicative that the murder was premeditated. That the murder was premeditated is evident also when one considers the medical evidence in relation to count 3.

Count 3: Contravening regulation 25(a) promulgated in terms of section 90(1) read with section 68(1) of the National Health Act 61 of 2003

[302] The State alleges that the accused after killing the deceased removed her organs. This count must be considered against the evidence of the investigating officer in relation to human trafficking and the demand for organs. Human trafficking in South Africa is a practice of forced labour and commercial sexual exploitation amongst men, women and children. In South Africa girls are trafficked for sexual exploitation and domestic servitude while boys are used for street vending, food service and agriculture. Traffickers are people who engage in such activity occasionally to those who are part of an organised crime network. Even though the Prevention and Combatting of Trafficking in Persons Act in 2013 was enacted, little change has resulted.   

[303] Human trafficking also exploits victims of trafficking for the purposes of organ removal. There is a huge demand for organs and the inclusion of this form of exploitation was intended to cover those situations where a person is exploited for the purposes of a trafficker obtaining profit in the organ market and situations where a person is trafficked for the purpose of removal of their organs and or body parts for the purposes of witchcraft and traditional medicine. Market forces drive supply and demand for organs and in the latter situation muti involves the removal of body parts including skulls, hearts, eyes and genitals which are sold and used by practitioners to increase wealth, influence, health or fertility. 

[304] Much data has been collected in relation to the removal of organs and trafficking in children. It is noted that many abducted or missing children have subsequently been found dead with certain organs removed. 

[305] The National Health Act allows for the Minister to make regulations relating to tissue, cells, organs, blood, blood products and gametes in terms of s 68 of the Act. Among the regulations promulgated include the removal of tissue or cells from a person. The provisions of s 68 of the Act must be read together with s 90 which also deals with the making of regulations in respect of the removal of organs and body parts. 

[306] Section 1 of the National Health Act defines an organ to mean: 

‘any part of the human body adapted by it structures to perform any particular vital function, including the eye and its accessories, but does not include the skin and appendages, flesh, bone, bone marrow, body fluid, blood or a gamete.’ 

[307] Tissue is defined in the National Health Act to mean:

‘human tissue, and includes flesh, bone, a gland, an organ, skin, bone marrow or body fluid, but excludes blood or a gamete.’ 

[308] Regulation 25 of the regulations regarding the general control of human bodies, tissue, blood, blood products and gametes was published on 2 March 2012 and amended on 26 April 2017. Regulation 2 stipulates that unless written consent has been granted a person may not remove tissue or gametes from the body of another living person. In addition, reg 3 provides that tissue, blood and gametes may only be removed or drawn from a living person and used for medical and dental purposes. 

[309] Regulation 25 deals with the offences and the penalties in contravention of the National Health Act and reads as follows: 

‘Any person who –

(a) except insofar as it may be permitted by or under any other law, acquires, uses or supplies a body of a deceased person or any tissue, blood or gamete of a living or deceased person in any other manner or for any other purpose than that committed in the Act and these Regulations; 

…

shall be guilty of an offence and liable on conviction to a fine or imprisonment for a period of 10 years or to both fine and imprisonment.’

[310] In respect of count three the State alleges that the accused without the necessary permission and in a manner not provided for or for a purpose other than those permitted in terms of the National Health Act and its Regulations removed the internal organs and or other soft tissue of the deceased after killing her. 

[311] The accused’s defence to this count is a bare denial. In respect of the medical evidence supporting this count Dr Khan who conducted the post-mortem examination confirmed her findings and observations in the post-mortem report, exhibit “E”.

[312] Her post-mortem examination found several organs missing. The facial structures were not fully represented. The soft tissue structures were completely absent whilst bony structures were present. The skin of the orbits depicted well enucleated edges with jagged edges.

[313] This she concluded was consistent with them being manually removed by a sharp object.  The eyes, eyelids and eyelashes were absent in addition the tongue, pharynx and larynx were also absent. The trachea and bronchi were absent as was the heart, pericardial sac and both lungs. The carotid arteries aorta vena cava were absent.

[314] In respect of the abdomen the stomach was absent as well as the intestines and mesentery together with the gallbladder, liver and biliary passages as well as the pancreas and spleen. She was of the view that because the ribcage was absent it had been removed to gain access to the heart to remove same.

[315] As can be seen from her evidence she excluded the possibility of scavengers, predators and insects being responsible for the removal of the organs. There was no sign of sepsis or a solvent being used on the body which could also explain the missing organs.

[316] What was also noteworthy from her report was the differing stages of decomposition which she found the body in - both early and advanced. She testified that decomposition would occur in a uniform manner and one would not see such advanced stages of decomposition like skeletonisation and mummification given the short time span since death, just less than a month. This together with the missing organs was indicative that decomposition on certain parts of the body was affected and hastened by the manual removal of the internal organs.  

[317] That organs were missing because they were left behind at scene 2 can be excluded given Constable Mlotshwa’s evidence that apart from ensuring the immediate vicinity of where the body was found was searched and those parts of the body were brought along, the police also searched an area of an approximate 30 metre radius in the vicinity of where the body was found to ensure that all the body parts and structures were taken to the mortuary for examination.

[318] The accused was the only one who knew that the deceased had died and where the body of the deceased had been disposed of. Once one excludes the removal of the organs by a predator, scavenger, insects, sepsis or a solvent as indicated by Dr Khan, then the inference that it was the accused who removed the organs is a reasonable one to draw in the circumstances given Constable Mlotshwa’s evidence that there were elements of human trafficking or a muti killing in the matter. The inference that organs could have been removed for muti purposes is also consistent with the evidence of Dr Khan.

[319] She could have done so to obtain muti to resolve her financial difficulties or obtained a monetary benefit from removing the organs and selling them. That she killed the deceased for the purposes of removing her organs is also consistent with the finding that the murder was premeditated. 

Counts 4 to 6: Attempted Extortion

[320] The evidence establishes that the accused sent sms’s to the parents of the deceased on no less than three occasions. These were to threaten and inspire fear in the minds of N [....]  and Brian Nkala the deceased’s father, that unless a cash payment of R20 000.00 was made their daughter would not be safely returned. The messages were sent with the intent for them to pay monies for the safe return of the deceased thereby gaining an advantage not due to the accused. The evidence of the State witnesses accords with the accused’s plea in regard to the nature of the messages sent, to whom and when she sent the messages and accords with the cellphone records referred to in the exhibits. I thus have no hesitation in concluding that the accused is guilty of counts 4 to 6 as contained in the indictment.

[321] Although the accused denied any involvement in the commission of the offences in counts 2 and 3 I have no hesitation in rejecting her denial. I have also carefully considered the evidence of the State witnesses and have dealt with my impression of them as well as that of the accused. This is set out in detail in the judgment. 

My Findings

[322] I have carefully considered and analysed the evidence of all the witnesses who testified. I have considered the probabilities and improbabilities, bearing in mind that throughout the onus rests on the State to prove the guilt of the accused on all counts beyond a reasonable doubt.

[323] In doing so, I did not lose sight of the fact that there is no onus on the accused to prove her innocence. I have come to my decision based on an evaluation and consideration of the evidence in its entirety. I have considered the probabilities and improbabilities, contradictions, inconsistencies, deliberate falsehoods, and most importantly the demeanour of all the witnesses. I have also, exercised the greatest caution in doing so, and borne in mind the requirement of the State to prove its case beyond a reasonable doubt. There is a plethora of evidence against the accused and when viewed in its totality the case against the accused is overwhelming.

[324] I am of the view that having regard to the version of the State as well as the defence and considering the mosaic of evidence as a whole, it translates into proof beyond a reasonable doubt.

[325] I have also borne in mind the dicta of Holmes JA in S v Artman & another^[47] where he says the following: 

‘…courts must guard against their reasoning tending to become stifled by formalism. In other words, the exercise of caution must not be allowed to displace the exercise of common sense…’. 

[326] I am indebted to the parties’ legal representatives for the oral submissions submitted during the course of the trial. It has assisted tremendously in the drafting of this judgment.

[327]    In the result, I have no hesitation in concluding that based on the mosaic of evidence and the other evidence presented, the State has proven its case against the accused beyond reasonable doubt. 

Conclusion

[328] In the result:

(a)          In respect of count 1: Kidnapping, the accused is found guilty.

(b)          In respect of count 2: Murder read with section 51(1) and Part 1 of Schedule 2 of the Criminal Law Amendment Act, 105 of 1997, the accused is found guilty in circumstances where the murder was premeditated.

(c)          In respect of count 3: Contravening Regulation 25(a) promulgated in terms of section 90(1) read with section 68 (1) of the National Health Act 61 of 2003, the accused is found guilty.

(d)          In respect of count 4: Attempted extortion, the accused is found guilty.

(e)          In respect of count 5: Attempted extortion, the accused is found guilty.

(f)           In respect of count 6: Attempted extortion, the accused is found guilty.

 

 

Henriques J

 

CASE INFORMATION

APPEARANCES

Counsel for the State                                   :         Advocate S. Naidu

 

Instructed by                                                 :        The National Prosecuting Authority

                                                                               Durban

Email: snayager@npa.gov.za

 

 

Counsel for the Accused                             :           Mr T.P. Pillay 

 

Instructed by                                                 :       Legal Aid South Africa Durban

Tel: (031) 942 1002

 

Dates of Hearing                                          :      08 November 2021; 9 November 2021;

                                                                            10 November 2021; 11 November 2021;

15 November 2021; 16 November 2021

17 November 2021; 22 November 2021

23 November 2021; 24 November 2021

25 November 2021; 17 January 2022.

 

Date of Judgment                                        :       21 February 2022

 

[1] S v Glegg 1973 (1) SA 34 (A) at 34.

[2] R v Mlambo 1957 (4) SA 727 (A) at 738A-B.

[3] Miller v Minister of Pensions [1947] 2 All ER 372 at 373G-H.

[4] S v Phallo & others 1999 (2) SACR 558 (SCA) paras 10-11.

[5] R v Mlambo 1957 (4) SA 727 (A) at 738A-C.

[6] S v Shackell 2001 (2) SACR 185 (SCA) para 30.

[7] S v Chabalala 2003 (1) SACR 134 (SCA) para 15.

[8] S v Van Aswegen 2001 (2) SACR 97 (SCA).

[9] S v Van der Meyden 1999 (1) SACR 447 (W) at 449B-D.

[10] R v Blom 1939 AD 188.

[11] S v Musingadi & others 2005 (1) SACR 395 (SCA) para 20.

[12] Ibid.

[13] R v Hlongwane 1959 (3) SA 337 (A) at 341A-B.

[14] P J Schwikkard and S E Van der Merwe Principles of Evidence 4 ed (2016) at 578-579.

[15] R v De Villiers 1944 AD 493.

[16] S v Reddy & others 1996 (2) SACR 1 (A) at 8C-E.

[17] Ibid at 8G-9A.

[18] Ibid at 9B-E.

[19] Shange & others v S [2017] 3 All SA 289 (KZP).

[20] S v Shaw [2011] ZAKZPHC 32; AR342/10 (1 August 2011).

[21] R v De Villiers 1944 AD 493 at 508-9.

[22] R v Mthembu 1950 (1) SA 670 (A) at 680.

[23] R v Sibanda & others 1965 (4) SA 241 (SRA) at 246A-C.

[24] S v Cooper & others 1976 (2) SA 875 (T) at 876G-H.

[25] Ibid at 889A-C.

[26] S v Mkohle 1990 (1) SACR 95 (A).

[27] Ibid at 98E-G.

[28] See C R Snyman Criminal Law 7 ed (2020) at 417; S v Burger & others 2010 (2) SACR 1 (SCA) para 32. ²⁹ S v Fraser 2005 (1) SACR 455 (SCA) para 24.

[29] R v Long (2) 1969 (3) SA 713 (R).

[30] S v Levy & another 1967 (1) SA 351 (W) at 353A-B.

[31] S v Ebrahim (CCD49/19) [2020] ZAKZDHC 64 (7 December 2020).

[32] Nohour & another v Minister of Justice and Constitutional Development 2020 (2) SACR 229 (SCA).

[33] Tembani v S [2007] 2 All SA 373 (SCA).

[34] Ibid para 1.

[35] Ibid para 10.

[36] S v Mokgethi 1990 (1) SA 32 (A).

[37] Ibid at 40-41 and 45G-H.

[38] Tembani above fn 34 para 17.

[39] S v Maqubela 2017 (2) SACR 690 (SCA).

[40] Michael & another v Linksfield Park Clinic (Pty) Ltd & another 2001 (3) SA 1188 (SCA) para 40.

[41] Ibid.

[42] Dingley v The Chief Constable, Strathclyde Police 2000 SC (HL) 77.

[43] S v Maqubela above fn 40 para 5.

[44] Montsho v S (20572/2014) [2015] ZASCA 187 (27 November 2015) para 13.

[45] S v Raath 2009 (2) SACR 46 (C).

[46] Kekana v S (629/2013) [2014] ZASCA 158 (1 October 2014).

[47] S v Artman & another 1968 (3) SA 339 (A) at 341B-C.

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