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REORTABLE

SOUTH GAUTENG HIGH COURT

JOHANNESBURG

CASE NO: SS 42/13

DPP REF NO: JPV 2013/026

DATE: 6th June 2013

In the matter between:

THE STATE

and

MGIBELO, THEMBI JANE ENKILE..........................................................................Accused

J U D G M E N T

MUDAU, AJ:

INTRODUCTION

[1] In the early hours of 15^th November 2012, the deceased in count 1 and the complainant in count 2 who at the time were lovers were asleep inside a shack. Someone arrived and doused the shack in which they were sleeping with inflammable liquids and thereafter set the shack on fire. As a result, the deceased and the complainant sustained serious wounds. Both were taken to hospital for treatment. The complainant survived but the deceased died as a result of the burns which he sustained in the fire.

[2] Arising from these facts the accused (Ms Mgibelo Thembi Jane Enkile) who is the mother of the deceased’s child, was arraigned for trial on an indictment consisting of three charges. The charges are: murder (read with s section 51(1) of the Criminal Law Amendment Act 105 of 1997 (count 1), attempted murder (count 2) as well as arson (count 3).

[3] The accused pleaded not guilty to the charges against her. In the explanation of plea in terms of s115 of the Criminal Procedure Act 51 of 1977, the accused raised an alibi as her defence.

[4] In this matter, the accused made formal admissions (Exhibits “A” to “I”) that are recorded in terms of section 220 of the Criminal Procedure Act 51 of 1977. The formal admissions are amongst others, with regard to the identity of the deceased and the date and place of the deceased’s death. It was formally admitted that the cause of the deceased’s death in this case, was as a result of “extensive burns”. It is not in dispute in this matter that the offences as alleged by the State were committed.

[5] It will become apparent from the evidence presented by the State that the evidence is, in the main, circumstantial. The primary issue in this trial is whether the State has proved beyond a reasonable doubt that the accused was the person (or one of the persons) who set the deceased’s shack alight resulting in the death of the deceased and the complainant barely surviving the burn wounds.

[6] The State called several witnesses that included the surviving victim. For convenience and not out of disrespect, some of the witnesses are referred in this judgment by their first names for the simple reason that they were referred to as such when they testified. The accused was the sole witness to testify in her own defence.

[7] Vuyiswa Dube (Vuyiswa), the complainant in respect of count 2 testified essentially as follows. At the time of this incident, she resided at number 232 Delmore squatter camp as a tenant. She and the deceased had been lovers for about three years when this incident occurred. The deceased had disclosed to her from the onset that he had someone else in his life (the accused) who was also the mother of his son. During or about February 2012, the deceased informed her that his relationship with the accused was over. By this time, she knew the accused as she had often seen her in the streets at Delmore squatter camp. During November 2012, the accused lived with her, Vuyiswa, or at his sister’s place.

[8] On the 14^th November 2012 and at about 8h30, the accused arrived at her (the complainant’s) place of residence. The accused was with the child (a son then four years of age) she had by the deceased. The accused found her busy with house chores inside her room. Inside the room with the complaint was her friend Thandazile Prayer Sithole (Thandazile).

[9] The accused was carrying with her a 2 litre cool drink bottle filled with paraffin. The accused asked who Vuyiswa was. The complainant identified herself to the accused and invited the accused to take a seat inside the room whilst she finished washing dishes. The accused refused to come into the room. The accused thereafter asked her to come outside as she wanted a word with her. The accused was visibly angry and threatened to burn down her room as the deceased brought their child with him whenever he spent his nights there. She told the accused she could not turn the child away if Thomas (the deceased) came to visit her with his son. Instead she (the complainant) gave the child the love and care that the accused denied him.

[10] The accused advised Thandazile to remove her personal possessions from the house as she wanted to set it alight. Thandazile pleaded with the accused not to set the house alight as Vuyiswa was not the owner but, a tenant.

[11] The accused insisted that the deceased should come to the shack to denounce his love for her, failing which she would set the shack on fire. Thereafter, the accused together with the complainant and Thandazile set out to look for the deceased. The accused still had with her the two litre bottle of paraffin. The deceased however, could not be traced. Thereafter, the three of them returned to the complainant’s shack.

[12] Upon returning to the complainant’s shack the accused poured paraffin on the floor of the complainant’s room and attempted to light a match. A neighbour (Thabisile) whose room is adjoined to that of the complainant, upon hearing the commotion, rushed there, and together with the help of Thandazile, restrained the accused from setting the house on fire. In the process, a knife that the accused also held fell to the ground. Thereafter, the accused who was by then crying left. The complainant with help of her companions remained cleaning what remained of the paraffin. She knew it was paraffin by its distinct smell. She too used paraffin as there was no electricity in the squatter camp.

[13] Sometime later during the afternoon, the accused returned in the company of two other women. One of the women was carrying a 2 litre milk plastic container in a plastic bag. The plastic container contained petrol which she could tell by its smell. Once again the accused declared that unless the deceased arrived to resolve the issue, she was there to burn the shack down. Thabisile pleaded with the accused not to carry out her threats as the fire might spread to adjoining houses and cause incalculable damage. Once more the complainant went out looking for the deceased. This time she was accompanied by her neighbour Thabisile who had also realised the seriousness of the situation. Thandazile who at the time, was pregnant, remained behind at the complainant’s shack together with the accused and her companions.

[14] The deceased was eventually traced to one of his friend’s homes. The deceased however refused to go to where the accused was for fear that his presence there might make the situation spiral out of control. When the complainant returned to deliver the news, the accused, her companions and Thandazile had by then moved to the nearby communal tap. She reported to the accused what deceased told her. The accused said she was in a hurry as she had to get back to Germiston. The accused and her companions thereafter left. They took with them the container that had petrol. Later that afternoon the deceased took her, the complainant, shopping.

[15] Upon returning from their shopping spree and later that night, the deceased invited her to spend the night with him at another shack where the incident leading to the commission of these offences occurred. This is about five minutes walk from her place of residence. I interpose to make an observation that this must have been as a precaution on the part of the deceased in light of what happened earlier. She and the deceased went to bed in the shack that Elvis, the deceased’s friend, during that period used as his. Elvis was not there but at work. In the same yard was another shack that Samson, a State witness who was also the deceased’s friend, used.

[15] Whilst they were asleep and between 01h00 and 02h00 on the 15^th/11/12, there was a hard knock at their door. She whispered to the deceased that they should not respond to the knock to be able to identify who the person was. From his room, Samson asked who was knocking. The person did not respond but continued knocking on their door. The deceased eventually asked who it was at the door. There was no response. The complainant was able to make out through the glass panel of their door that the shape of the person at the door was that of a female with a “straight up” hair style (with hair extensions).

[16] What happened next was very quick. The woman at the door opened a container and poured “something” on the floor at the door. This was followed by big flames in and outside their door. The deceased bravely attempted to extinguish the fire but to no avail. Instead the deceased caught fire. The door was the only point of entry and exit as the shack had no windows. The deceased tried to push the wooden panels of the shack to create an escape route. It was in vain. Other people broke the back part of the burning shack. That is how they were both saved at that point from being consumed by the fire. The deceased was crying out in pain as he had sustained more severe burn injuries than she had.

[17] They were rushed to hospital for treatment. That was the last time she saw the deceased alive. She later learnt that the deceased whom she loved dearly, succumbed to his injuries. After being rushed to theatre for emergency treatment, she remained in hospital for a month. She left the hospital without being formally discharged. She went back home to Kwa-Zulu Natal and continued receiving private health treatment.

[18] Under cross examination, the complainant testified that in the early years of her relationship with the deceased, she knew he stayed with the accused in Germiston. The deceased did not personally introduce her to the accused. It was her friends who pointed the accused out to her when she saw the accused in the street.

[19] It was put to the complainant that the accused left her with her cell-phone numbers for the complainant to either call or buzz her number in the event the deceased came to visit her with their child. The complainant disputed this version. She denied that she had the accused’s cell-phone contact numbers.

[20] According to the complainant, when there was a knock on the door where she and the deceased were sleeping, she knew instinctively who that person was. From her body shape, silhouette and hairstyle she recognised the person as the accused. Although there were no street lights, electric lights from a nearby business company building illuminated thorough the glass part of the door. She was asked if this was in her statement. She testified that she was not certain as her statement was taken shortly after the incident whilst she was still fighting for her life.

[21] It was put to her that the accused would deny committing the said offences. The complainant responded that there was no other person she had a conflict with other than the accused. She was asked if she could dispute that the person who came with the accused during the day could have been the one who set the shack on fire. She disputed this suggestion as the person she saw with the accused during the day was much taller than the accused. It was suggested to the complainant that as taxis in her area from where the accused stayed in Germiston stopped operating at 7pm, the accused had no means of transport to commit these crimes. The complainant could not say what time taxis stopped operating. That in essence, concluded the complainant’s testimony.

[22] The sequel of events that happened at the scene of the crimes was essentially confirmed by the deceased’s friend, Samson. Samson however did not see who set the deceased’s shack on fire.

[23] Ms Thabisile Precious Mabuza (Thabisile), was the 2^nd witness to testify for the State. When the events that took place on the 14^th November 2012 occurred, she had been a tenant in a room adjoining that of the complainant for a week. It is her version that she barely knew the complainant, Vuyiswa. Neither did she know the accused before this incident. She however confirmed the complainant’s evidence insofar as it affected her. She further testified that later in the afternoon of the 14^th November, she returned home after receiving a report that the accused was threating to burn the complainant’s shack. She found the accused in possession of a black plastic bag which contained a 2 litre milk container. The accused asked her to remove her possessions from the shack as she had petrol and wanted to burn the place. As indicated above, this witness repeated in essence what according to Vuyiswa transpired thereafter.

[24] Thabisile further testified that at approximately 01h20 on 15th/11/12) while she was asleep, there was a rough knock at Vuyiswa’s door. She remained quite in the knowledge that Vuyiswa would answer to the knock. When a second knock followed, she enquired who it was. The accused responded that it was her “Thembi”. She (Thabisile) jumped out of her bed and opened her door. She could only see the figure of a person walking away. She went to the window and drew the curtain open just in time to see the accused still carrying the same bag in which she had a 2litre milk container. She recognised the accused by her hairstyle, voice, build, manner of walk and face as she turned to close the gate about 4-5 meters from her window. The accused was dressed in a white leather jacket and had covered herself with a “Scottish” blanket at the bottom. She was able to see the accused clearly as the moon was up. It was later around 3 am that she received the news of this incident.

[25] When cross-examined by the defence, a version was put to Thabisile that the container she had seen upon the accused‘s visit on the 14^th was not paraffin but 2 litre of milk. The witness disputed this suggestion and maintained it was paraffin as she knew the smell.

[26] Thandazile also testified and confirmed both versions by the two State witnesses in as far as she was also referred to in the said evidence. During cross-examination, it is Thandazile’s version that there was no reference to petrol when the accused arrived later that afternoon with the other two ladies. In response to a clarifying question by the court with regard to what happened to the 2litre milk container when the accused and her companions left, it is her version that the accused took it with her.

[27] The deceased’s mother, Mrs Mudzunga Johanna Ramathuba (Mrs Ramathuba), testified that from the age of 3 months she lived with the accused and the deceased’s son, Tshedza, in Venda. Two weeks before this incident, the deceased brought Tshedza to Gauteng to buy him Christmas clothing. Between 8 and 9am on the 14th November 2012, the accused phoned to tell her that she had found out the place in the squatter camp where the deceased was spending his nights; she said she would “show the people from the squatter camp”. She ,Ramathuba, warned the accused not to cause fights. The accused said she would, if arrested, be released on bail. She further said she was going to take a taxi and bring Tshedza to her in Venda.

[28] She later phoned the accused at about 4pm to establish how far she was from Venda. The accused said she could not make the trip as she had a problem with a generator. The accused suggested that she, Ramathuba, might take a taxi to Gauteng the next day to fetch Tshedza. Ramathuba agreed.

[29] When her daughter phoned at about 2am on the 15^th/11/2012 and informed her of this tragedy, she immediately called the accused, but her calls went unanswered. She kept on calling the accused on her cell-phone until the accused’s cell-phone was switched off about ten minutes later. During the cross-examination of this witness she maintained her version about the accused’s threats.

[30] The threats to kill or burn the deceased for the reasons indicated above were similarly echoed by the deceased’s sister, Thelma. It is common cause that the accused phoned her on the 14^th. It is Thelma’s evidence that after the deceased’s burial she charged and switched on the deceased’s phone. The idea was to find messages (if any) with regard to his debtors as he loaned people money for a profit.

[31] An sms message immediately came through from the accused’s cell-phone number to the deceased’s cell-phone. It was written in Sotho, which is the accused’s language. The message was sent on 15 November 2012 at 14h27.Translated the message reads: ”I think it is right that I am arrested as I have been your prisoner for a long time. Forgive me for what I have done to you. God should help you recover. I am sorry. Forgive me please”. She took the deceased’s cell-phone to the investigating officer. The authenticity of this message and the fact that it was sent from the accused’s cell-phone forms part of the section 220 formal admissions. I shall revert to this aspect in my evaluation of the evidence as a whole.

[32] Walter Thifulufhelwi Mudzwiri (Walter) who is the deceased’s cousin testified that he passed by the deceased‘s place of residence, the scene of the incident, on the 14^th November 2012. The deceased was not there. He later went past the accused and the deceased’s tavern which is about five minutes away from where the deceased resided. He found the accused washing Tshedza’s clothing whilst the child, Tshedza, was playing in the street stark naked. When he enquired from the accused why the child was naked, the accused explained that the deceased had the child’s clothing. She also told him they had differences as the deceased had a relationship with another woman. The accused was angry, beat her chest and said she was going to kill the deceased.

[33] He called his younger brother, Mpho, to enquire from him where the deceased was as he wanted to get to the bottom of this matter. He had used the accused’s cell-phone as he had no airtime left in his own cell -phone. The reason he did not call the deceased directly from the accused’s cell-phone was for fear that the deceased might not answer the call when he saw the accused’s number appear on his cell- phone. Under cross-examination, it was put to the witness the only reason for the call was for the accused to bring the child’s clothing. Walter disputed this suggestion.

[34] The deceased’s uncle, Mushoni David Ramathuba (David), testified that upon hearing of this incident early on the 15^th, he went to the deceased’s place of residence at about 9am. The reason was to fetch the deceased’s second car which had been parked there for a long time as it had been damaged by hail. He asked the accused why she did that to the deceased, to which she responded that even if he was to be released from the hospital, she was going to kill him. It was not disputed that this witness visited at the accused’s place early that morning.

[35] Philippine Khonzani is the deceased’s cousin. After hearing the news of this incident she drove to the place of incident between 3 and 4am that day. She is the one who found a burnt 2 litre milk container (Exhibit “1”) in this matter which she gave to the police. The significance of her testimony is that Exhibit “1” is by description similar to the milk container that was described by Thabisile. It is reasonable to infer that Exhibit “1” contained the inflammable liquid substance that was used to douse the shack wherein the victims were sleeping. This witness also testified that she was present when the accused was arrested. She had asked the accused: “why are you killing our brother?” The accused just kept quiet.

[36] The arresting police officer Sgt Siweya testified to the effect that after her arrest on the 15^th November 2012, the accused was taken to Reigerpark Police Station. The accused was kept under guard in the charge office as there are no holding cells until the paperwork relating to her arrest was completed and the docket opened. The accused was not relieved of her personal possessions including her cell-phone (a Blackberry with a blue cover) from the time she arrived at 13h45 until she was escorted to Boksburg Police Station at 16h00 (as supported by the occurrence register Exhibits “K1 and K2”). Had her possessions been confiscated, it would have required the completion of an SAP22 register which the Station did not keep. Sgt Siweya testified that the police are often accused for stealing from arrestees. For that reason, he did not confiscate anything from the accused to avoid such accusations.

[37] Under cross examination Sgt Siweya was asked: ”Can you agree, at Boksburg, the accused’s cell-phone was confiscated?” Sgt Siweya disputed this as the accused phoned him using her cell-phone from the Boksburg Police Station holding cells on the 16^th of November 2012. The accused wanted to know whether she had incriminated herself in her dealings with him. The significance of the version put to Sgt Siweya is that the accused’s cell-phone was confiscated only when she was at the Boksburg Police Station. This aspect will be dealt fully during my evaluation of the evidence.

[38] The accused’s version is primarily as follows. Whilst she does not dispute making calls or meeting with the witnesses who testified on behalf of the State on the dates referred to, she dispute uttering any threats to kill the deceased. She knew of the deceased’s love relationship with Vuyiswa since February 2012.This however did not affect her relationship with the accused as Vuyiswa was not the only one in the deceased’s life as she knew of at least two others with whom deceased would spent the night with her son. The accused gave an example of another woman impregnated by the deceased about the same time she was expecting their child Tendani. Tendani has since passed away.

[39] It was the accused’s version that she visited the complainant (Vuyiswa) on the 14^th November 2012 to ask her not to allow the deceased to spend his nights there with her son. This hurt and embarrassed her. Vuyiswa told her she was not in a love relationship with her son but, the deceased. This made her cry and she left the Vuyiswa’s premises. That was the last time she saw the complainant. The accused disputed that she went there carrying a bottle with paraffin; what she had was a 2 litre of milk bought from a shop. Later on towards 6pm she returned home in Germiston where she stayed with the deceased and never left home. Though she was not in a position to state the time that taxis stop their services in Delmore squatter camp, she said it is difficult to find public transport after 19h00.

[40] The accused disputed that she went looking for the deceased with any of the witnesses that day. She further denied that she later returned to the complainant’s premises carrying a container with petrol. The accused did not want to be drawn into what the witnesses had testified in that regard. On the night of the 14^th November 2012, the deceased had told her he was going to gamble as he usually did. On many occasions the accused did not sleep at home. She however did not know where he slept that night. However, she knew the shack where this incident occurred as she had visited before with the deceased. The yard belonged to the deceased’s mother. Of the State witnesses who testified about her unhappiness regarding the deceased’s conduct (i.e sleeping over with other girlfriends with their son), the only person she did not inform telephonically was his mother, Mrs Ramathuba. She had preferred to tell the deceased’s mother face to face.

[41] With regard to Philippine’s evidence that she kept quiet upon being confronted by the allegations, it is the accused’s version that she looked her in the eye and asked: “Does it seem that I could have done that?”. It is the accused’s version that she did not have her cell-phone with her upon her arrest. She had left it charging inside her room as she was under the impression that she was being taken in for questioning and would return home soon. The deceased’s family had arrived at her home travelling in three cars; as the window was not closed her cell-phone was stolen. She said she suspected that it was the deceased’s family members who had stolen it and sent the incriminating message to the deceased’s cell-phone.

[42] Regarding her hair style as described by the State witnesses, it is her version that hers was a “straight side” and not a “straight up” as suggested by the witnesses. The defence case was thereafter closed.

[43] The State bears an onus to establish the guilt of the accused beyond a reasonable doubt. If the accused’s version is found to be reasonably possibly true, she will be entitled to her acquittal. For the same consideration, it is also necessary to state that there is no onus on the accused to explain the reason(s) why the State witnesses are implicating her in the commission of the crimes.

[44] It is an established principle of our law that where an alibi is raised, there is no burden on the accused to prove her alibi.¹ In the evaluation of the evidence however, the correct approach is to consider the alibi in the light of the totality of the evidence in the case and the Court’s impressions of the witnesses.²

[45] In my evaluation of the evidence, I find that the complainant in this matter was a credible and honest witness who testified in a simple but straight forward manner. The complainant’s version was not seriously challenged in cross-examination. Her testimony was to a large extent and in all material respects corroborated by Thabisile and Thandazile’s evidence. The three of them corroborated each other in that the accused was at the complainant’s shack twice that day in broad day light threatening to burn the shack. The first time, the accused arrived with a 2 litre cool drink bottle containing paraffin which she poured on the floor and had to be restrained before she could light a match. They all testified that she also had a knife.

[46] There was however some discrepancy with regard to how the accused possessed the knife. According to the complainant the accused had the knife in her hands whereas Thandazile testified that the accused removed the knife from her bra. This discrepancy is, in my view, of a relatively minor nature which usually flows from observations made by people from different vantage points under different situations.

[47] These witnesses further corroborated each other that the accused returned with two other ladies but this time with a milk container that however contained petrol. It is significant that a half burnt 2 litre plastic milk container was recovered a few steps from the door of the shack which was burnt. It is fair to infer that this was the container that contained the inflammable liquid which was, most probably, petrol, given the speed the fire spread in and outside the door. I am fortified in my view since Thabisile testified about seeing the same bag with which the accused held the container shortly before the incident.

[48] Thabisile made a good impression in my mind as she hardly knew the victims. When Thabisile saw and recognised the accused at about 01h20, light was favourable. The source thereof was moonlight. The proximity within which she saw the accused turn, closing the gate, was also favourable as it was a few steps from her window. Thabisile gave a detailed description of the accused’s clothes at the time which were bright. Her version in this regard was never challenged in its entirety.

[49] The threats to harm, burn or kill the deceased by the accused were also corroborated by the evidence of the deceased’s mother (Mrs Ramathuba), Thelma, Walter, and David. The accused’s interaction with these witnesses in different ways on the 14^th and the 15th of November 2012 respectively was admitted. Against this background, their respective versions seem most probable and not concocted. Besides, the versions by these witnesses were also not seriously challenged or contradicted in any material way. A common theme as derived from their evidence was that the accused was angry when they spoke to her.

[50] I find that the State witnesses individually and as a group, corroborated the State’s version regarding the threats against the deceased’s life and the complainant’s property.

[51] However, the evidence of the complainant regarding the identification of the accused at the scene of the crime through the glass portion of the door remains that of a single witness. The danger inherent in the reliance exclusively on the sincerity and perceptive powers of a single witness is well known. For this reason, this account requires cautious scrutiny.³ Her credibility and the reliability of her evidence in regard to the identification of the accused at the time of the crimes must accordingly be considered.⁴ It must be recalled that according to the complainant’s version, her “instinct” told her who the woman outside that door was. Considering the events of the preceding day, there is rationality in her statement. However, human beings by their nature are fallible.⁵ Honest people can also make honest mistakes.

[52] It only transpired in cross-examination that the silhouette of the person she saw outside the door before the shack was set alight was that of the accused whom she identified by her hairstyle, height and built. I find it strange that she did not bring this to the deceased’s attention since both of them were already awake at the sound of the first knock at the door. Inherent in the question asked by the deceased in the following terms: ”who is it?” was to establish certainty with regard to the identity of the person outside the door.

[53] There is no plausible reason tendered why the complainant did not bring this to the deceased’s attention which in all likelihood would have elicited a question such as: “Thembi, what are doing here?” instead of the preceding question. Whilst it is accepted that the complainant was an honest and truthful witness, considering that the light she depended on was not direct but secondary, visibility must have been relatively poor. As it turned out it all happened fast. I accordingly find that her identification of the complainant at the scene is unreliable and insufficient to establish the identity of the offender without corroboration.

[54] It remains to deal with the evaluation of the accused’s evidence in light of her alibi defence. In R v Biyela⁶ Greenberg JA stated:

“The treatment, in the rest of the passage, of the appellant's alibi is also open to the objection that it required the appellant 'to prove his alibi'. We were referred by counsel for the Crown to a passage in the judgment of JUTA, A.J.A., in Rex v Dube, 1915 AD 557 at p. 582, where the learned Judge is reported to have said: 'Where the defence is an alibi it lies on the accused to prove it,' but, with a great respect, this statement cannot be supported. If there is evidence of an accused person's presence at a place and at a time which makes it impossible for him to have committed the crime charged, then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime.”

[55] I have no difficulty in stating upfront that the accused presented as a brave, intelligent and well-spoken woman with few, if any emotions shown. The only occasion I observed some emotions on her part was when the complainant broke down and cried when she described the deceased’s last moments inside the burning shack. It was only then that the accused’s eyes appeared to me to well with tears, for a short moment. However, the accused’s evidence was extremely unconvincing, inherently contradictory and improbable in material respects. The record is replete with many such examples. What follows hereunder are some of the examples to illustrate the point I make in this regard. I do not intend to traverse her whole version, as this might unduly burden the record.

[56] It is the accused’s version that her child reported that he was hungry, which then led her to discover that the deceased and the complainant spent the night together with the child. As the child was hungry, it is the accused’s version that she went to a nearby shop to get the child food. Instead of serving the child food immediately thereafter, the accused went in search of the complainant which ultimately led to the confrontation that ensued.

[57] On her version, this demonstrates that the tavern where she operated and sometimes slept in is not situated far from where the complainant resided at the time. In addition, it demonstrates that the accused was, at the least, highly upset or at most angry, as she was no longer concerned about her hungry child but wanted to confront the complainant, as the State witnesses had testified. The suggestion that the accused was carrying a 2 litre plastic bottle of milk, to my mind, was merely intended to neutralise the State’s version that she arrived there with a bottle of paraffin.

[58] As it is the accused’s version that she only went to the complainant’s shack once that morning, I find it strange that the complainant was never confronted with this version, but Thabisile and Thandazile were (confronted with a version that the accused would dispute that she returned in the afternoon carrying a container with petrol in the company of two other women). One cannot attribute this to a mistake or oversight on the part of the defence counsel for the simple reason that, in cross examination of the complainant a question was put to her as follows: ”Can you dispute that the person who came with her (accused) could be her?”. This is with reference to the complainant’s testimony in placing the accused at the scene of the crime. It is seems to me from the nature of the question posed that it was admitted, albeit informally, that the accused went to confront the complainant with another woman. This could not have been any other time but later in the day, as it is common course that, in the morning the accused confronted the complainant in the presence of her child.

[59] The accused’s version that she was with the deceased late on the 14^th of November 2012 in Germiston when he told her that he was going out to gamble is highly inconceivable and an improbability. It is in stark contrast to the complainant’s version in this regard since she (the complainant) and the deceased went shopping. On their return after her nap, he invited her over for the night not long thereafter. In addition, this must be viewed against the background that, earlier, on the accused’s own version, the deceased was refusing to take her calls. This is consistent with the complainant’s version that the deceased refused to come with her to where the accused at the complainant’s place.

[60] Regarding the cell-phone message referred to at para 29 above, its authenticity and the fact that it was sent from the accused’s cell-phone to that of the deceased was formally admitted and is thus proved beyond reasonable doubt.

[61] The accused however denies sending the message to the deceased’s cell-phone as she alleges she had left hers at home and later found it stolen. She suggests that it was the deceased’s family members who not only stole her cell-phone but also sent an incriminating message to implicate her. The difficulty I have with this version is that it was materially contradicted by the version of the arresting officer who described the make as well as the colour of the accused’s cell-phone as detailed above at para 34.The police officer was never challenged in this regard. In addition this was never suggested or put to any of the family members and in particular to Philippine, who testified that she was the one who took the police to the accused’s address in Germiston. The accused testified that upon her release from custody, she found that some of her property in the room was stolen. Yet for some inexplicable reasons, the accused did not lay a charge with the police.

[62] Furthermore, this contradicts a version put to the arresting police officer (Siweya) thus: “Can you agree at Boksburg the accused’s cell-phone was confiscated?” This statement suggests or confirms, consistent with the State version, that the accused had her cell-phone with her at all material times from the time of her arrest until she was detained at the Boksburg police Station at 4pm. Lastly, the accused‘s conspiracy theory about the cell -phone message does not hold water as the message was sent at 14h27 whereas the deceased died later at 23h00. I find it inconceivable that the family members would have gone to these extremes in anticipation of the deceased’s death, as well as the accused’s possible future defence methods in this matter.

[63] It had been suggested during the cross-examination of the complainant that the accused would state that there were no taxis operating between Delmore squatter camp and Germiston by 21h00 pm. This was intended to demonstrate that the accused would not have had the means of travel between her home and the scene of the crimes. In her evidence in chief however, the accused could not categorically state what time the taxis stopped operating; she could only say it is difficult to find a taxi after 21h00 pm.

[64] Typically, when the accused was confronted with patent contradictions, she shifted the blame to her counsel. I gained an impression that this was unfair as the accused was on numerous occasions approached by counsel to clarify issues.

[65] It accordingly follows that, for the foregoing reasons, the accused’s version is not reasonably possibly true. It is dismissed as false to the extent that it is contradicted by the version of the State.

[66] In this case the State conceded, and correctly so in my view, that the evidence against the accused is largely circumstantial. The rules of reasoning by inference are an established part of our law. Watermeyer JA stated in R v Blom⁷ as follows:

“In reasoning by inference there are two cardinal rules of logic which cannot be ignored:

1. The inference sought to be drawn must be consistent with all the proved facts. 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.”

[67] From the evidence presented before this Court, I am satisfied that the State managed to prove beyond any reasonable doubt the following facts:

1. On 14 November 2012, the accused was angry after discovering that the deceased had a love affair with the complainant. She was also angered by the fact that the deceased took her son with him to spend the night at the complainant’s shack. She confronted the complainant early that morning.

2 The accused threatened to burn the shack of the complainant, and went as far as to pour paraffin on the complainant’s kitchen floor and tried to light a match. After the State witnesses had managed to prevent the accused from burning the complainant’s shack, she was visibly upset and cried when she left the premises.

3. She phoned the mother of the deceased and told her that she found the place where the deceased slept and that threatened she would “show the people” at the shacks. The accused also indicated that she did not care if she got arrested as she would easily get bail.

4. The accused also phoned the deceased’s sister, Thelma. She was upset and informed the deceased’s sister that she would burn the deceased.

5. The accused persisted with her plan and returned in the company of two unidentified women to the shack of the complainant. The accused had a 2 litre milk container which contained an inflammable liquid, most likely petrol, in her possession. She once again threatened to burn the complainant’s shack if the deceased did not come there and end their relationship in front of all the people.

6. The accused also told the deceased’s cousin, Walter, that she found out that the deceased had a love relationship with a lady who resided in the shacks and that she went to her shack earlier on 14 November 2012. She told him she would kill the deceased.

7. At about 01h20 in the morning of 15 November 2012 the accused went to the complainant’s shack. She was carrying the same 2 litre milk container with inflammable liquid which she had had with her that previous afternoon.

8. After discovering that the deceased and the complainant were not present at the complainant’s shack, she left the premises.

9. The deceased’s mother’s yard where Samson, the deceased’s friend, used one of the shacks is about 5 minutes’ walk from the complainant’s shack. Between 01h00 and 02h00 Samson was awakened by a knock at the door. He answered, but no one responded.

10. There was another knock, this time at the door of the next shack. When the deceased answered to the knock, an inflammable liquid which was in all probability petrol was poured at the door of the shack, after which the track was set on fire.

11. A 2 litre milk container similar to the one the accused had had in her possession on 14 November 2012 was found at the crime scene.

12. The uncle of the deceased confronted the accused on 15 November 2012. The accused told him that if the deceased recovered and was discharged from hospital, she would still kill him.

13. After her arrest and whilst sitting in the charge office of Reigerpark Police Station, the accused sent an sms to the deceased’s cell-phone in which she apologised for what she had done and requested him to forgive her. This was at 14h27.

14. Although she resided in Germiston at the time of the incident, the accused managed a tavern in Delmore Squatter Camp and the tavern was equipped with a room to sleep in. The accused therefore did not need transport whilst in Delmas squatter camp as she had a room of her own she could sleep in for the night. The complainant’s shack and the scene of the crimes were all within a walking distance from the tavern where the accused had this room.

15. The accused’s version of an alibi is not reasonable possible true and is dismissed as false.

[68] From the abovementioned established facts, one can safely infer that the motive for the attack on the victims was because of the deceased’s love relationship with the surviving victim. Although her son had been visiting in Gauteng for at least two weeks prior to this incident, it was the deceased who lived with their son wherever he chose to spend the night with his sister or Vuyiswa. I am strengthened in my view in this regard as it was the deceased who kept the child’s clothing and not the accused. This explains why the child was playing naked in the street whilst the accused washed the clothing he earlier worn; it must also be recalled that, according to the undisputed evidence, she had asked Walter to call the deceased to bring the child‘s clothing.

[69] It is clear therefore that the relationship between the accused and the deceased at the time was not as good as she wanted this court to believe. What inextricably bound them were the child and their business relations regarding the tavern.

[70] From the established facts the only reasonable inference is that it was the accused who deliberately set the shack on fire. This inference is consistent with all the proved facts. As a result, the deceased sustained severe burn wounds from which he succumbed to his death on the 15^th November 2012 at approximately 23hrs, whereas the complainant survived.

[71] In conclusion, I find that, regard being had to the totality of the evidence, the State has discharged its onus of proving the guilt of the accused beyond any reasonable doubt. The accused acted in accordance with a preconceived plan in the commission of these offences: the murder is thus premeditated.

[72] In the result I find the accused, (Mgibelo Thembi Jane Enkile) guilty in respect of:

Count 1: Murder (premeditated, in terms of s51 (1) Act105 of 1997).

Count 2: Attempted murder.

Count 3: Arson.

_____________________________________

T P MUDAU

ACTING JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG

HEARD ON: 13 MAY 2013-30 MAY 2013

JUDGMENT ON: 6^TH JUNE 2013

COUNSEL FOR THE STATE: ADV MULLER

COUNSEL FOR THE ACCUSSED: ADV YABO

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