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

EASTERN CAPE LOCAL DIVISION, GRAHAMSTOWN

CASE NO: CC 47/17

REPORTABLE

In the matter between:

THE STATE

v

BULELWA NDUDULA Accused

JUDGMENT

STRETCH J:

Background

[1] Sakhekile Ndudula married his wife Bulelwa during 1996. They had three

children. Their marriage was not without its problems. According to Bulelwa,

Sakhekile would threaten to kill her. Bulelwa in turn had Sakhekile arrested on a

charge of rape and evicted him from the matrimonial home by way of a protection

order. During 2007 Sakhekile moved out and went to live with his parents. Not long

thereafter they were divorced.

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[2] On 30 September 2011 tragedy struck. Their last-born child drowned in the

bathtub at home. She was six years old. Sakhekile returned to the matrimonial

home. His two surviving children needed a father. Sakhekile and Bulelwa decided to

give their marriage a second chance. They became reunited on 9 October 2011. The

following year, they exchanged vows for the second time.

[3] However, the relationship between Bulelwa and her in-laws remained strained.

During July 2015 the family gathered to celebrate the initiation of their oldest boy.

Thereafter Bulelwa no longer visited her mother-in-law.

[4] On the morning of 14 September 2016 Sakhekile was shot several times at

their matrimonial at [….], East London. He died that same morning.

[5] On 30 September 2016 Bulelwa was at the homestead of Sakhekile’s family.

The police arrived. They arrested her on charges of murdering her husband,

Sakhekile Ndudula on 14 September 2016, by shooting him with a 9mm parabellum

pistol in the sanctity of his own home.

[6] I will hereinafter refer to Sakhekile Ndudula as the deceased. I will refer to his

widow, Bulelwa Ndudula, as the accused. When he died, the deceased represented

the ANC as a member of the executive council for social development in the Komani

area. The accused is a primary school teacher.

The charges and the pleadings

[7] The accused was subsequently indicted and tried in the high court on charges

of murder and the unlawful possession of one semi-automatic firearm and

ammunition. It is alleged that the murder was “planned and premeditated”.

[8] Her trial commenced before me in East London on 21 May 2018. She was

represented by counsel throughout.

[9] The accused pleaded not guilty to all the charges and confirmed the contents of

a manuscript plea explanation which was submitted by her counsel in terms of

section 115 of the Criminal Procedure Act 51 of 1977 (“the Act”). She also made

certain formal admissions in terms of section 220 of the Act. This is her statement:

‘I, the undersigned

BULELWA VERONICA NDUDULA

States:

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1.

I am an adult female person with Identity Number [….] and I am residing at 17 Weare

Road, Cambridge West, East London. I am an accused person in these proceedings.

2.

I am legally represented and all my rights including the right to silence were

explained to me and I have out of my own free will elected to make this statement.

3.

I intend to plead not guilty to the charges mentioned in the Charge Sheet.

4.

The basis of my defence to the charges is on the following basis:

a. I am aware that the on the 14th day of September 2016 at about 06:30 I was at

my aforesaid premises together with the deceased person in this matter and we

were both preparing to go to work.

b. I was in the kitchen, when I heard the deceased shouting and at the time I

thought he was shouting off some cats that occasionally intrude into our yard.

c. The deceased later thereafter came into the house to collect his helping of the

cereal and he went back into the bedroom.

d. A while later I heard a bang, which I cannot recall whether it was one bang or

more bangs.

e. I heard the deceased shouting that he had been shot and that I must hasten to

take him to hospital.

f. I may have waited for some few seconds in the kitchen as I had to satisfy myself

that the danger was out of the way and on coming out, I saw the deceased

crawling from the main bedroom into the garage and I went into the bathroom,

where I called out the name of the tenant, Noligwa Mkungeka to hastily come into

the main house.

g. Noligwa’s room is situated in an outbuilding and she has wardrobes that were

standing inside the room, which barring the wall, were the only obstacles that

separated her room from my bathroom as in essence her room is attached to my

bathroom.

h. It took some while for Noligwa to arrive and when she did, she was in the

company of another female person, which in my first reaction to her conduct,

thought to be a nurse as she felt the pulse of my husband and reported that there

4

was still some pulse and after that we decided to transport the deceased to

hospital ourselves.

i. The deceased was quite a heavy man and in loading him into the vehicle there

were four persons that were involved, Noligwa, her female friend, a security

guard from ADT security and I. I may dare say that I held the deceased on his

upper body and the others were holding at some other parts of his body.

j. I must state that the State is relying on the fact that there had been primer

residue that was detected on my hand and the jacket that I had on in the morning

of the incident, which I explained during bail application that I could have had that

transmitted from the deceased to me as there was no other way that I would have

acquired the same.

k. I do not know whether the State examined and tested the body of the deceased

and/or that of the other persons that assisted me in carrying the body of the

deceased into my vehicle for some traces of primer residue.

l. I am aware that the State had alleged during bail application that there was a

strong suspicion that I had used the vehicle belonging to the deceased to dispose

of the murder weapon and that is not so and I have been made aware that a

simple trip log request, which the police made to the tracking company on or

about September 2016 for the vehicle HJL 955 EC, which belonged to the

deceased.

m. I have not been served with the outcome of the subpoenad information, despite

many requests from the State about same.

n. I must mention that the deceased had a tendency of first lifting up the garage

door and roll the gate wide open on each day that he was preparing to go to work

and on the said day, the garage door was open on one side, exposing his vehicle

an Audi Q7 and it could have been easy for anyone wishing to access our home

to gain entry into the house via the garage and once inside the garage, the only

place that the intruder would get to first would be our main bedroom, where I last

saw the deceased in.

o. I knew that the deceased had many enemies, in his work as a member of

Regional Executive Committee of the ANC in the Komani Area and also some

other enemies, which he advised me about and also advised his employer, the

MEC for Social Development, Nancy Sihlwayi.

p. I did not think much about these threats in the life of the deceased, and;

q. I did not kill the deceased nor was I in possession of any fire arm and ammunition

as the State alleges.

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5.

I admit the results of post mortem and the conclusions reached by the pathologist

who conducted the examination on the body of the deceased and that:

a. The deceased in this matter was Sakhekile Ndudula, a 51-year-old man.

b. The chief cause of his death was abdominal injuries (internal bleeding) due to

multiple gunshot wounds to the thoraco-abdominal wall.

c. The post-mortem report to be handed in to this Court as an exhibit and the

injuries and observations reflected therein, pertain to the deceased Sakhekile

Ndudula.

d. The deceased died as a result of the abovementioned injuries, which were

inflicted upon him in the morning of Wednesday, 14 September 2016.

e. The deceased sustained no further injuries from the time that he died in the

morning of 14 September 2016 until forensic pathologist, Dr. Solomzi

Solomon Zondi, performed a post-mortem examination on the body on 16

September 2016.

f. The photographs of the deceased taken at the post-mortem examination to

be handed in to this Court as an exhibit correctly reflect the injuries sustained

by the deceased, resulting in his death.

g. On 14 September 2016, Constable Luyanda Douw, stationed at the Local

Criminal Record Centre, East London, visited the scene and collected

gunshot residue test from me as well as my red coat (jacket).

h. The gunshot residue evidence collection kit with number 13S1M8506XX and

my red coat (jacket) that was placed inside a brown envelope were sealed in

an exhibit bag with seal number PW3000526325.

i. I admit that some of the test samples marked inter alia “M8506RIGHT”,

“E469RIGHT” and “E469LEFT” tested positive for characteristic gunshot

residue.

6.

The above mentioned admissions can be regarded as admissions in terms of

Section 220 of the Criminal Procedure Act 51 of 1977.

DATED AT EAST LONDON THIS THE 11TH DAY OF DECEMBER 2017.

(signed)

B.V. NDUDULA

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(Accused)’

[10] The prosecution did not make an opening address at the commencement of its

case. It merely advised the Court that it would be relying in the main on

circumstantial evidence, and sought an indulgence in advance for presenting

evidence which, on the face of it, may appear to be inconsequential.

[11] The outline of the State’s case was instead reflected in a brief summary of

substantial facts annexed to the indictment and the list of witnesses. It reads as

follows:

‘SUMMARY OF SUBSTANTIAL FACTS

1. The accused and the deceased were married.

2. They once divorced but remarried after the death of their last born child.

3. Their marriage was however still characterised by marital problems.

4. Early in the morning, the accused picked a fight with the deceased when he

came out of the shower. It was only the two of them in the house.

5. The accused shot the deceased several times with a semi-automatic pistol in the

chest at close range.

6. The deceased was taken to St Dominics Hospital, where he died shortly after

being admitted.

7. The cause of the deceased’s death was abdominal injuries (internal bleeding)

due to multiple gunshot wounds to the thoraco-abdominal wall.

8. The accused got rid of the firearm in question. She was not the licensed owner

thereof.’

Evidence for the prosecution

[12] The deceased’s mother (Monica Ndudula) was the first witness called to the

stand. She lives at the deceased’s parental home at Esigubudweni in the Tsomo

area.

[13] On Wednesday, 14 September 2016 she heard that her son, the deceased,

had been shot. She heard this at about 8am. She arrived at the deceased’s marital

home somewhere between 11am and midday. By then the accused had already

returned from the hospital and was sitting quietly in the car.

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[14] Later on that day Mrs Ndudula enquired from the accused about what had

happened. The accused reported to her that the deceased had been having his

breakfast cereal. She heard him chasing the cats. He came back inside. She heard

him opening the garage and the gate and returning to the bedroom. That was when

he was shot.

[15] She said that during the course of relating the shocking events to her, the

accused was just “her normal self as she is now”. When the accused’s brother and

her son died, the accused was emotional. But not this time. This time she was calm.

She said that she had expected the accused to have cried when she if she and the

accused were “in the same pain”.

[16] Mrs Ndudula confirmed that the first marriage between the accused and the

deceased was acrimonious. The accused had said that the deceased had

threatened to shoot her (the accused). The accused in turn had laid a rape charge

against the deceased and had him evicted from the matrimonial home. She

confessed that she did not have much hope that the second marriage between the

accused and the deceased would be any better than the first one. She had told the

deceased that she did not see a future for him with this type of wife, despite the fact

that the couple had apparently forgiven each other for past mistakes. Mrs Ndudula

conceded that there were no reports to her about marital problems after the couple

had exchanged vows for the second time.

[17] The second witness to be called by the prosecution was 34 year old Ayanda

Tuswa. Ayanda (who has an N3 in electrical engineering) claimed to have been

engaged in a brief week long affair with the accused during 2009.

[18] During March/April 2016 he and one Buntu Jwaai visited the accused’s home to

help her with her DSTV decoder. While he was standing on a chair fiddling with the

TV decoder above the wardrobe in the main bedroom, the accused complained that

she had been battling to reach him on the phone and said that she had a gun and

would shoot him (seemingly in a moment of jest). She pointed out a handgun in the

wardrobe just below the shelf where Ayanda was working, and told Buntu to hand it

to her. Ayanda instructed Buntu to remove the magazine which was loaded with

ammunition. Buntu did so and handed the arm to the accused. Ayanda took the

firearm from the accused, cocked it, and discovered that there was a bullet in the

chamber. Everyone was shocked, including the accused. Buntu replaced the

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magazine and put the firearm back in the cupboard. The cupboard appeared to have

been one which the accused was sharing with the deceased.

[19] During cross-examination of this witness, it was denied on the accused’s behalf

that she had been engaged in an affair with Ayanda, despite having received a love

proposal from him. According to the accused, she had declined as she considered

him “immature”.

[20] With respect to the firearm it was admitted that the deceased’s licenced firearm

was indeed kept in the cupboard in question, but that the accused did not permit

Ayanda or Buntu to take it into their physical possession, nor did she threaten to

shoot Ayanda with it.

[21] It was also put to Ayanda, that some time before the deceased was killed,

Ayanda had taken photographs of the parties’ matrimonial home, depicting the

double garage with their two cars standing side by side, and had sent these to her.

Ayanda, whilst admitting knowledge of the double garage with an inter-leading door

to the main bedroom, said that he could not recall having taken these photos.1

There was also some confusion about money which Ayanda had apparently

borrowed from the accused but had not repaid. According to Ayanda he did repay

the debt by way of services rendered.

[22] Buntu Jwaai in his testimony corroborated Ayanda’s evidence in all material

respects.

[23] Having sketched this background, the prosecution moved on to the events

which transpired on the day when the deceased was killed. The first witness to testify

in this regard, was the tenant (Noligwa Mkungeka) to whom the accused referred in

her plea explanation.

[24] Noligwa testified that she took occupation as a tenant at 17 Weare Road in

January 2015.

[25] On Wednesday, 14 September 2016 at about 6am she was still in bed when

she heard the sound of water running from the couple’s en-suite bathroom. She also

distinctly heard something which sounded like a “whistle”. Thereafter she heard

1 A photo which was produced after the witness had testified, reflects a whatsapp image (dated 2015/11/17 07:48) which appears to have been captured from the inside of a motor-vehicle parked in the street outside the walled premises of the parties’ matrimonial home. The gate to the property is open as well as the doors to the double garage, exposing the deceased’s Audi parked in the left hand garage as one faces the building (hereinafter referred to as the deceased’s garage), and the accused’s Mercedes Benz (which was used to transport the deceased to the hospital) on the right hand side closest to the inter-leading door to the main bedroom (hereinafter referred to as the accused’s garage).

9

shouting. She recognised the voices of the accused and the deceased. They were

arguing. This was not the first time for her to hear them engaged in an argument.

The accused sounded unhappy. Her voice was raised. She was accusing the

deceased of coming from girlfriends. The deceased shouted back at her. He said:

‘Is this what we are going to do? Have an argument about this issue about having

extra marital affairs on a daily basis?

[26] Thereafter it sounded as if the furniture was being moved around. The

accused said:

‘Are you hitting me now?’

The deceased said:

‘Are you also hitting back?’

This exchange was followed by loud noises which the witness described as

“bangs” following each other in quick succession. Then the deceased uttered

the following words:

‘Bulelwa, you are not even buying criminals to do this. I do not even know why I

married you, you witch! …. Where are the people? Noligwa, please call people!’

[27] This was followed by the rapid succession of clicking sounds like stiletto heels

walking around on the wooden floor. The clicking sounds continued for about five

minutes. At some stage the accused called out Noligwa’s name about four times. But

she did so quietly. Not in the high pitched tone which Noligwa had heard when they

were arguing. It was not the desperate cry of a person calling for help.

[28] Noligwa had, in the meantime, tried to transmit a whatsapp message to her

friend Vuyiseka Ngoqo (hereinafter referred to as “VJ”). When the message did not

go through, she phoned VJ, asking her to pop around if she had a chance, as there

was a fight going on in the main house. She went outside to wait for VJ. While she

10

was waiting she heard the sound of the deceased’s garage door, being opened or

closed. The deceased said:

‘Why are you closing the door? Take me to my car, so that you can take me to

hospital.’

[29] Not long after that VJ arrived. She parked her car in the street and entered via

the main gate which was already open. Together Noligwa and VJ approached the

house. The accused was standing on the steps leading to the inter-leading door

between the garage and the bedroom. She was wearing a pair of trousers and high-

heeled shoes. She was in the process of putting on a red coat. She said:

‘They have shot my husband.’

[30] That was when Noligwa saw the deceased. He was lying on his stomach on the

garage floor. He was bleeding. He had car keys in the one hand. A cellular phone in

the other. VJ asked the accused whether she had summonsed the police and an

ambulance. The accused replied that she had called “Dabs”. They did not know

whether Dabs was from the police or the ambulance services, so VJ tried to call the

emergency number 112 to summons assistance. VJ had by then taken the

deceased’s pulse. According to her, the deceased was still alive, so VJ suggested

that they transport him to the hospital themselves.2

[31] While the accused was inside the main house looking for her car keys, VJ and

Noligwa turned the deceased onto his back and moved him out of the way. The

accused came back without the car keys. They reminded her about the keys and she

went back inside, returned with the keys, started her car and reversed it out of the

garage. She did not appear to be panicking at all.

2 I digress to mention, that in response to my query as to why there was no sketch plan of the scene, the prosecutor produced an impressive looking lever arch file containing, he said, exhibits which he intended to “refer to during the trial”. I was advised that I would find a photo album of the scene at the very end of the file. There was no sketch plan. I received these documents on the understanding that they were being handed up provisionally, subject to the appropriate formal admissions or proof in the ordinary course. Noligwa was referred to a photo reflecting the deceased’s garage as closed and the accused’s as open. She said that when she approached the scene, the deceased’s garage was in the process of shutting.

11

[32] By then the security official from ADT (Vumani Majeke) had arrived. Majeke,

Noligwa and VJ picked the deceased up and placed him in the accused’s car.3

According to Noligwa, he was too heavy to be placed in the Audi Q7, which was not

a low slung vehicle like the accused’s sedan. They positioned the deceased in the

back seat. VJ suggested a pillow to support his head. The accused brought a pillow

from the house. Thereafter she closed her garage door, and she and VJ transported

the deceased to the hospital. VJ drove. The accused occupied the front passenger

seat. Noligwa later heard that the deceased had passed on at the hospital.

[33] Noligwa confessed to having deposed to no less than two affidavits on oath in

connection with this matter. Her first affidavit was taken at 2pm that same day. It

says the following (emphasis has been added):

‘On Wednesday 2016.09.14 at about 06:45 I was sleeping in my back room. I am a

tenant on the above address. While I was sleeping, I heard the owner, Mrs Bulelwa

Ndudula calling me. She was shouting Noligwa, Noligwa come. She was crying in

between. I also heard the husband (Sakhekile) talking but I could not hear what he

was saying.

2.

I then called my friend Vuyiseka who is my friend to come because I did want to go

alone to the front. I was thinking they have a quarrel but not sure. I did not get out of

my flat because I scared.

3.

I then checked through the window and I saw Vuyiseka’s car and that is when I get

out of my room. When I was approaching the garage I notice Bulelwa was panicking

and when I check next to their car (Mercedes Benz) which was inside the garage.

4.

Sakhekile (deceased) was kneeling next to the car facing down with his car keys and

cellphone on his right hand. I notice there is blood on Sakhekile’s waist. Bulelwa

informed us that someone shot her husband. Vuyiseka asked if Bulelwa phone police

and ambulance and Bulelwa said she phoned already.

3 Vumani Majeke confirmed that he, VJ and Noligwa carried the deceased to the accused’s car and placed him in the back seat.

12

5.

I am not sure who suggested that we must take him to hospital because the

emergency service will take their own time. We helped each other to lift him and put

him inside the car and that time ADT security has arrived that time. Vuyiseka drove to

hospital with the wife. I did not hear any noise except the time I was called by the

wife.’

[34] On the following day, indeed, shortly before midnight, Noligwa deposed to the

following version on oath (emphasis has been added):

‘2.

On Wednesday 2016-09-14 @ 05:45 I heard the shower in the main house. Shortly

thereafter I heard the shower open, this time I also heard a whistle. By that time I was

still in bed. On the same day at about 06:05 I heard Bulelwa (my landlady) shouting

saying: “Hey man you come back late because you are busy with your whores”. I

then heard the deceased (who was also my landlord), saying: “leave me alone are

we going to argue about that everytime.” I could clearly hear that there was an

argument between the deceased and his wife (Bulelwa). The argument continued

and I heard a sound like movement of the furniture. I heard the deceased asking:

“Oh, you fighting back now?”

3.

After a short pause I heard a bang. It was not a loud bang and I assumed they were

fighting and maybe pushing each other against the bed or headboard. Shortly

thereafter I heard a further few bangs (three to four) although I could not say exactly

how many bangs. I heard Sakhekile (deceased) saying: “You are not even buying

tsotsis you cruel witch, take me to the car to hospital. Where are the people. Noligwa

come.” I did not respond. I heard footsteps of someone wearing heel shoes, as if the

person was moving around and moving fast. I was still in my bed at the time. I then

heard Bulelwa also calling me, but in a very calm voice. She said Noligwa come. I

responded by saying: “Sisi”.

4.

I sent a watsapp message to my friend Vuyiseka (VJ). But she did not respond. I then

phoned VJ and asked her to come because the landlord and landlady were fighting. I

did not tell VJ I heard gunshots. I peeped through my bathroom door waiting to see

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VJ approaching. I saw a white car and thought it was VJ so I went out and around the

house waiting on the corner of the main house. While still waiting for VJ I saw the

garage door on the far side from the entrance door (Q7 Audi)’s side closing. I heard

the deceased asking: “Why are you closing the door you evil witch how am I going to

get to hospital?” I did not see where the deceased was at the time but it sounded as

if he was in the garage. VJ then arrived.

5.

My friend Vuyiseka (VJ) parked her car outside the yard and walked into the yard as

the gate was already opened at that time. As soon as she came into the yard I also

walked closer to her and we both approached the garage in order to enter into the

house. The garage door closer to the entrance of the house was opened at the time.

Both vehicles were parked inside the garage. Bulelwa was standing in the bedroom

door holding onto her jacket she was wearing. My friend asked her if she was fine

and she did not respond but instead told us her husband had been shot. It is only

then that I saw the husband lying face down on the garage floor in a leopard crawl

position with his head facing the gate. He had his cellphone in one hand and the Audi

key in the other hand. I cannot say in which hand was he carrying the key and

cellphone. VJ asked her if she called the police and ambulance and she said she

called her aunt.

6.

A Black male, unknown to me from the security company (ADT) arrived. My friend VJ

suggested we take the deceased to hospital by car as the ambulance will take long.

Bulelwa went into the house to look for the Mercedes keys. She came out without the

keys. We asked her again to go back for the keys. She went back into the house the

second time to look for the keys. When she came out she went straight to the car to

reverse it out of the garage. By that time when she reversed the car we had already

turned him over so as to make way for the car to be taken out of the garage.

7.

We asked the security guard to assist us to pick him up the deceased, who was still

alive at the time as VJ (my friend) felt for a pulse by the time we turned him over. We

managed to put him inside the car and VJ drove them to the hospital. VJ asked me to

take her kids to school. The kids were left in her car outside the yard when she

arrived. I took them to school and went back home to prepare my child for school.

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8.

After I dropped off my child I went to hospital. Whilst at the hospital we were phoned

to inform us that the police were waiting for us at the house. VJ and the brother of the

deceased drove Bulelwa’s car back to the house and I drove my car back to the

house but I never went into the house. VJ opened for the police but I never went into

the house and I left to report at work that something had happened at home and that

I will be coming to work late.’

[35] Noligwa explained that she had said in her first affidavit that she had not heard

what transpired inside the house because she did not want to get involved. The

following morning the police collected her at work. They interrogated her. They

instructed her to tell the truth because she had lied in her first affidavit. She had, in

the meanwhile, also had a conversation with VJ and realised that VJ had spoken the

truth in her own affidavit. It was then that she decided to come out with the truth.

After she had told the police the truth, the accused was also brought to the police

station. The police spent a very long time with the accused. She thought that they

were recording the accused’s statement. Thereafter she was called in and they

recorded her second affidavit in writing shortly before midnight. Thereafter the police

told her that they were going to destroy her first affidavit, because she had now

spoken the truth.

[36] During cross-examination she said that the police had not exactly used the

word “destroy”. They simply said that her first affidavit was no longer going to be

used. She initially said that she was not aware that VJ had spoken the truth to the

police. She was simply aware of the fact that VJ knew what the truth was, and had

assumed that VJ had told the police the truth. She made this assumption when VJ

returned from the hospital that very same morning.

[37] When Noligwa was taken through her first affidavit during cross-examination

she said that she had deliberately lied when she said the following:

a. That the accused was shouting when she called Noligwa;

b. That the accused was crying in between;

c. That she was unable to hear what the deceased was saying;

d. That she was not sure whether they were having a quarrel;

e. That she did not hear what they were talking about;

15

f. That the accused was panicking;

g. That she was not sure who suggested that they should take the deceased

to the hospital themselves;

h. That she never heard any noise coming from the main dwelling, apart from

the accused calling her.

[38] Noligwa was confronted with audio messages which VJ had posted on social

media shortly after the incident.4 During the course of relaying these messages, VJ

had shared the following information:

a. That when Noligwa telephoned her that morning, Noligwa told her that the

accused was crying.

b. Noligwa further told her that she thought that the accused was crying

because the deceased was assaulting her again.

c. That the accused, VJ and Noligwa were trying to load the deceased into

the car when the security official from ADT arrived and assisted them.

[39] When Noligwa was confronted with the fact that this information did not dovetail

with her version, she became evasive and argumentative. So for example, having

clearly stated in her evidence on oath that the accused was not crying, she

attempted to marry this evidence with her first affidavit and that which she had told

VJ on the phone, by saying that the accused must have been crying because she

heard the parties talking about hitting and retaliating. When she was pressed to

address the issue directly, she elected to hover between her two stories and said

that she could not recall whether the accused cried or not. As for the remainder of

the discrepancies between her version and VJ’s social media report, Noligwa

dismissed the latter by saying that VJ (upon whose truthfulness she had allegedly

placed much reliance earlier on in her evidence) had to explain herself. Thereafter,

she somewhat reluctantly explained that when she had phoned VJ to summons her

to the scene, she not only told VJ that the parties were fighting, but also said that it

was serious this time, because during the course of the fight, the deceased had

mentioned that she (Noligwa) should call people. Thereafter she fluctuated once

4 I will deal with these messages in full when I traverse VJ’s evidence.

16

again in her evidence, stating that she could not recall what she had told VJ on the

phone, except that there was a fight. She also added that she could not recall having

told the police in her first affidavit that the accused was crying.5

[40] Despite having categorically excluded the accused as one of the persons who

carried the deceased in her evidence in chief, she became far less sure of herself as

the cross-examination continued and eventually stated that according to her

“recollection” the accused did not assist.

[41] Noligwa, during cross-examination, adopted a rather curious and disturbing

habit of describing her version as “my truth”, VJ’s version as “her truth” and the

accused’s version as “her truth, because it will be coming out of her mouth”. It was

necessary for this Court, on more than one occasion, to encourage her to answer

questions directly, and to explain to her the difficulties associated with degrees of

truth. Finally, when she was asked whether she had spoken the truth when she

testified on oath, her response was that she spoke the truth “a lot”.

[42] Vuyiseka Ngoqo (“VJ”) confirmed in evidence that she had received a phone

call from Noligwa on the morning of Wednesday, 14 September 2016. With

reference to her landlord and –lady, Noligwa had said on the phone:

‘Get here quickly. Bhuti and Sissie are fighting.’

[43] VJ testified that she left for the crime scene at 6:55am. Her evidence about

what transpired thereafter corroborates that of Noligwa in most material respects. In

a nutshell, she said that upon her arrival, the gate and both garage doors were open.

Noligwa was standing outside. The accused and the deceased were in the garage.

The deceased was lying on the floor. He had a cellular phone in his left hand and car

keys in his right hand. She called out to the deceased after the accused had told her

that the deceased had been shot. He did not respond. She felt his pulse and

confirmed that he was still alive. She did not see any blood. She asked the accused

whether she had called an ambulance and the police. The accused replied that she

had called one Dabs. VJ tried to phone Netcare but failed. She was not in a good

state. She went into the street instead and shouted for help. There was no response.

She told the accused to reverse her car out of the garage. VJ and Noligwa turned the

5 This, despite the fact that the witness had stressed, shortly before, that she was deliberately lying when she told the police in her first affidavit that the accused had indeed been crying.

17

deceased over. They realised he was heavy. VJ went back into the street. By then

she was screaming and crying. The security official from ADT arrived. Because the

deceased was heavy they wanted to carry him on a plank but could not find one.

Eventually she, Noligwa and the security official managed to lift the deceased and

place him in the accused’s car. The accused was in the house most of the time. She

eventually came out wearing a jacket and carrying a bag. VJ suggested to the

accused that she should either sit with the deceased in the back seat or bring a

pillow to support him. The accused brought a pillow which VJ placed underneath the

deceased. She and the accused took the deceased to St Dominics Hospital. VJ

drove.

[44] On the way the accused told her what had happened. She said that she was in

the kitchen preparing lunch and eating her breakfast cereal. She heard the deceased

walking up and down in the house. She heard him saying:

‘Voetsek! Voetsek!’

His voice was coming from the direction of the main bedroom/garage. She thought

he was chasing stray cats. She heard something falling. It sounded like the cereal

bowl which he was carrying. She heard something which sounded like a shot being

fired. It happened twice. She hid herself in the kitchen.

[45] While the accused was explaining to VJ what had happened, the accused’s

phone rang. VJ took the call. She told the female person who was on the other end

of the line (“Dabs”) that they were on their way to the hospital with the deceased. VJ

said that they also chatted about where they hailed from. It transpired that the

accused had schooled with VJ’s sisters. The accused made small talk as if the

deceased was not there. She never even touched him.

[46] When they arrived at the hospital the nursing staff carried the deceased inside.

The accused remained seated in the car. Later she accompanied the accused into

the hospital in order to see to the formalities of the deceased’s admission. Dabs

arrived. A nurse approached them. She told them that the deceased had passed on.

According to VJ she herself expressed far more grief and emotion than anyone else

upon having been told the sad news. Indeed she cried out loudly. Dabs was also

crying. The accused said:

18

‘What did you say? What did you say nurse?’

[47] The nurses placed the accused on a bed and told her to cry if she wanted. Sgt

Petzer arrived. He obtained affidavits from VJ and the accused. He did not question

VJ in detail. Despite not having been questioned in detail by Petzer, VJ volunteered

the following information in the affidavit she deposed to directly after the deceased

had died:

a. That Noligwa had telephoned her that morning, saying that the accused

was crying.

b. That upon her arrival at the scene, she saw a bullet hole in the house.

c. She asked the accused about a firearm. The accused said she did not

know about any firearms.

[48] VJ said that when they returned to the scene there were many people. Some

spoke about threats. The accused had also touched on the subject of threats which

the deceased had received when they were on the way to the hospital.

[49] At the instance of the police, VJ deposed to a second affidavit three days later.

Therein she mentioned the following:

a. That when Noligwa telephoned her that morning, she said that the

deceased was in the process of assaulting the accused. This was at

06.55am.

b. She arrived at the scene at 06.59am.

c. Only the accused’s garage door was open.

d. She, the accused and Noligwa tried to place the deceased in the car but

he was too heavy. When the ADT security guard arrived, he assisted

them.

[50] VJ was referred to the recording of what she had said to her chat group on

social media that very same day. She said that she did not know why she had said

some of these things.6

6 For the best part of her evidence VJ was emotional. She was also adamant that she did not want to be led by the prosecutor, but preferred to tell her story without interruption, almost as if by rote. When she described

19

[51] A recording of what VJ had said to her chat group, was translated by the

official court interpreter and reads as follows:7

First clip:

I am a witness. My friend has been shot, but the person who shot is still unknown.

Other members of the ANC also got there and said he had been receiving threats.

Second clip:

I am in custody. What happened here is a child that I was schooling with, called

Nolikwa, she is a tenant in Cambridge with people who originate from the same

village as I. Now what happens is the homeboy used to hit the lady. She calls me and

tells me to go over because she thinks the lady is crying because she’s been

assaulted by the gentleman. I rushed there. On arrival the gentleman is lying next to

the motor-vehicle. He’s been shot on numerous occasions. Indeed I got there. We

loaded him in the vehicle and took him to St Dominics. He passed away before I

turned facing St Dominics. I’ve been questioned a lot and have been told not to

leave.

Third clip:

Wait people – so many questions and I’m still on my way to work. I am going to clock

in. I was telephoned by a friend. On arrival the gentleman was lying on the floor and

he was shot. My heroics and bravery that I hate a lot – trying to load him into a

vehicle. Trying to be of assistance – loading him in their vehicle. It was the wife, a girl

and me – the three of us – then ADT arrived. He helped us carry him and put him in.

There was still a pulse. We took him to St Dominics – when I turned, that’s when it

happened. He was carried by me, the wife, my friend and the ADT only. All of that

how the pillow was placed under the deceased for support, she began to weep audibly and hysterically and requested a comfort break. When she heard the recording of her own voice on social media however, she smiled. Ex facie this recording, she sounded excited when she relayed the events to her chat group. I did not detect the same emotion in her recorded voice, as that which I observed and heard when she testified. During cross examination she became hostile and defensive, from the onset challenging her examiner and saying that she thought she had already explained herself clearly. 7 During the trial, I was furnished with what purports to be a transcript of what had thus far been said in court. It is not. It also reflects words which do not exist in any language which I am aware of. I kept notes of what was said when the recording of VJ’s chat was played and translated by the official court interpreter from isiXhosa into English. From time to time, my notes differ from the aforesaid transcript. Where this has happened, this judgment will reflect what is contained in my notes, and not the gibberish and sometimes hugely material deviations reflected in the transcript. By way of example, VJ’s words to the chat group were interpreted as follows: “ … the person who shot is still unknown”. The transcript however reads: “the person who has been shot is still unknown”!

20

happened inside the house – not in the garage, or the gate or wherever. The wife

was at the house because he only lived with her.

[52] During cross-examination VJ denied that she had told Petzer in her first

affidavit that Noligwa had told her that the accused was crying. She maintained that

her second affidavit accurately reflected what she had told the police. However,

when it was put to her that her second affidavit reflected that the accused had helped

to carry the deceased, she attempted to distance herself from the statement saying

that the entire statement was not read back to her. She said that she had already

spent a lot of time with the police, it was late and that she was in a hurry to collect

her children from school (despite the fact that her statement was taken on a

Saturday). She admitted however that she had also told her chat group that the

accused had helped to carry the deceased.

[53] She said that she knew that the deceased had been shot in the house because

Warrant Officer Petzer had permitted her access to the house upon her return from

the hospital. It happened like this: She, VJ, was the one who had driven the

accused’s car back from the hospital to the crime scene. The accused had given her

the car keys and the house keys, as she was staying behind at the hospital. When

she arrived, Petzer was waiting outside the closed gate. Otherwise, the crime scene

was deserted.8 Petzer told her to walk exactly as he instructed her. She mentioned

to him that there were cameras in the yard. She followed him. The garage was

open.9 Petzer entered the house and invited her to follow him. He told her to stand in

the centre of the main bedroom. Although she had not been in the house before, she

noticed that the corner of the bed had been moved. The closet was open, exposing a

CCTV screen. She saw bullets lying around, but no cartridges. Petzer pointed out

bullet holes in the ceiling. Thereafter, he said that she was free to go.

[54] Detective Warrant Officer Petzer had 24 years’ experience as a detective at

the time that he testified. He said that on 14 September 2016 he was working at

Cambridge police station in East London when he received information that there

had been at shooting at 17 Weare Road. He attended the scene. Everything was

8 Earlier in her evidence VJ said that when she returned, there were a lot of people at the crime scene. She also said this to the members of her chat group. 9 According to Noligwa’s testimony on oath, both garages were closed before the deceased was taken to the hospital.

21

locked. He went to St Dominics Hospital where he obtained affidavits from the

accused and VJ. This was between 7 and 8am.

[55] The accused told him that she had been at home with the deceased. She said

she had just made breakfast and was in the kitchen. The deceased went outside and

came back in. He told her that he was going out again to open the gate. She heard

gunshots from outside. She hid behind the kitchen counter. When it was quiet she

called for the deceased. There was no response. She went to the door which links

the main bedroom to the garage. The deceased was lying on the garage floor.

[56] After having obtained these statements he returned to the scene. He was in a

hurry. It took him about ten minutes to drive from the hospital to the scene. On

average, and driving normally, the trip would take no longer than 15 to 20 minutes.

He had to wait for the accused to open up as the scene was still under lock and key.

She arrived 30 to 45 minutes later. There were other people with her, including VJ.

The accused handed the remote control for the garage door to VJ, who handed it

over to him. He opened the garage door with the remote control which the accused

had provided. He stepped onto the scene alone. No one accompanied him.

[57] He saw a 9mm calibre spent cartridge on the carpet in the garage near the door

leading to the main bedroom.10 This door was ajar. He saw other items on the stairs

between the garage and the main bedroom such as a button (it looked like a shirt

button) and a needle. He proceeded through the inter-leading door between the

garage and the main bedroom. He saw “drag marks” in the main bedroom. There

was an open empty jewellery box lying on the main bedroom floor. The bedroom was

10 The prosecution’s photograph album contained several photographs of the scene and the autopsy. The photos of the scene were frequently presented in isolation and in a vacuum, making it extremely difficult to determine where certain rooms and items were in relation to others. This is generally why sketch plans accompany photographs, an apparent luxury which was conspicuous in its absence throughout the trial and which was only introduced shortly before the prosecution closed its case, despite the fact that it had apparently been compiled a week after the deceased was shot. In the premises, and at the Court’s instance, Petzer made his best endeavours to describe how the pieces of the puzzle fit together from memory, which he did in the following terms: There is a door going into the main bedroom from the garage. The main bedroom has an en-suite bathroom. There is a second door leading from the main bedroom into the passage. If one walks from the main bedroom down the passage, the second bedroom is on the right, followed by the lounge. The third bedroom is on the left, followed by the guest bathroom and thereafter the open plan kitchen and the lounge. The distance from the door leading to the garage to the point where the passage meets up with the open plan kitchen is about seven metres. The house has a front door which leads out from the lounge and a back door which leads out from the kitchen. Both these doors were locked when he attended the scene. I might add that the belatedly introduced sketch plan perfectly corroborates Petzer’s description of the crime scene. The plan also reflects that Noligwa’s room shares a common wall with both the garage and the en-suite bathroom to the main bedroom.

22

clean. The bed had been made. He saw a piece of schrapnel on the main bedroom

floor. There was a bullet hole in one of the cupboards as well as in the trim of the

ceiling. He saw what appeared to be schrapnel from a 9mm projectile on the

passage floor between the second and third bedrooms. In the second bedroom he

saw two spent cartridges and another button, which he thought was similar to the

previous one. He found a 9mm calibre live round on the carpet in the second

bedroom.11 There were two ricochet marks on the second bedroom floor. There was

blood splattered in the passage at the entrance to the third bedroom.

[58] It occurred to him that the account which the accused had given him did not

correspond with the crime scene in the following respect: if shots had been fired

outside the house, the projectiles would be lying outside or in the garage, but not

inside the house. Apart from that, there were no other issues of concern to him with

respect to the accused’s version.

[59] By this time he had already contacted the criminal record centre and the

forensics department. He cordoned the scene off and took photos.

[60] It looked to him as if there had been blood on the floor which someone had

mopped up, but he was unable to say how long ago the cleaning could have taken

place. According to Petzer the forensics people showed him, with the use of luminal

spray and fluorescent lights, that a substance had been mopped up or cleaned up in

the passage. They searched the entire house, all the cupboards, the garage, the

garden and the garbage bins looking for a mop or similar utensil with blood on it.

There was nothing. Indeed they could find no exhibits at all.

[61] He was adamant that he was alone when he first entered the house. No

members of the public were ever allowed on the scene.12 The accused and other

civilians were sitting outside in a vehicle in the street.

[62] He asked the accused whether she was prepared to submit to primer residue

tests. She agreed. The tests were performed by Cst. Douw (assisted by Captain May

and Colonel Tyafu) at about 11am that same day. They were done privately as there

were a lot of people standing outside. His intention was to exclude her as a suspect

11 During cross examination Petzer confirmed that the ammunition which he saw lying on the floors of the various rooms was clearly visible to the naked eye. He said that anyone who walked into these rooms would have spotted these items. 12 This evidence is in stark contrast to that of VJ, who said that it was she who escorted Petzer to unlock the premises (as the accused was still at the hospital) and that she went with him into the house and that she herself made certain observations.

23

because on her version, she and the deceased were the only two people in the

house at the time of the shooting. He remarked that the accused was unusually quiet

both at the hospital and at the crime scene.

[63] At about 11.40am the criminal record team arrived from the provincial office.

Petzer stood outside the residence and explained to their team leader (Warrant

Officer Yelani) what he had found and observed inside the house. He was able to do

this with reference to his pocket book in which he had kept detailed notes. The team

then took over the scene. They left the scene at 18.10pm and returned at about 7am

the next day as the criminal record team had not finished “processing the house”.

[64] Significantly, Captain Kamteni from the Port Elizabeth forensic science

laboratory also arrived on the 15th and processed and reconstructed the scene.13

Petzer stayed until the forensics people had finished their investigation. According to

him the scene was “processed” and the photos in the State’s album were taken in his

absence. He said that he did not walk through the scene with the photographer

(Warrant Officer Yelani). He also did not point out anything to him. He simply told

those who processed the scene what he had found. Indeed, when Petzer was taken

through the photo album (without reference to the key thereto) he was unable to

comment on the significance of certain items which had been labelled and could not

identify what they were.

[65] Petzer confirmed that the doctor who had performed the autopsy on the

deceased’s body had handed him a 9mm projectile and the deceased’s clothes. He

handed these items in and they were recorded in the SAP13 (commonly known as

the exhibit register).

[66] During cross examination Petzer confirmed that what he had recorded in VJ’s

first affidavit was indeed what she had related to him. He explained that before he

took the accused’s affidavit, he was told by a nurse that the accused had been

sedated.

[67] Sindiswa Gede also known as (“Dabs”) is the deceased’s paternal aunt. She

testified that her phone rang at 06.56am on the morning of Wednesday, 14

September 2016. It was the accused. She said:

13 Captain Kamteni is cited in the “list of state witnesses” as “Captain Lulamile Kamteni (LAB 373917/16)”. More will be said about him later on in this judgment.

24

‘Sisi! Sisi! Sakhekile has been shot at the house! Please summons an ambulance.’

[68] Dabs, who was employed as the district manager for health services at the

Amatole health department, duly summonsed an ambulance, phoned the police and

informed family members. Thereafter she drove to the crime scene.

[69] She arrived at about 07.17am. Everything was quiet. She dialled the accused’s

phone. VJ answered and said they were on their way to St Dominics.

[70] She rushed to the hospital and asked the accused what had happened. It

seemed as if the accused was in shock. The accused explained that that morning

she was in the kitchen when she heard a sound like a glass bowl falling on the

ceramic tiles. She called out to the deceased. She heard the sound again. She hid in

the kitchen. When it was quiet she went out. She saw the deceased crawling

towards the door leading from the house into the garage. She called the tenant.

[71] While the accused was relating to her what had happened, they were informed

that the deceased had died. Dabs said she cried hysterically. The accused

exclaimed:

‘My husband!’

[72] Dabs exchanged her flat shoes for the accused’s high heeled shoes because

the accused could not stand. She was collapsing.

[73] Viwe Dinga was called by the prosecution. She is a headmistress employed

with the Department of Education. She is also the deceased’s cousin. She and the

accused were teaching together when the accused married the deceased. At some

point the police confiscated her mobile phone and transcribed various whatsapp

chats between Viwe and the accused. The obvious upshot of these messages is that

the accused had in confidence discussed her marriage problems with Viwe.

According to Viwe, the accused kept on complaining that the deceased had deserted

the matrimonial home. Viwe in turn, comforted her and attempted to render spiritual

counselling to the accused. During the course of these conversations the accused

told her that the marriage was on the rocks and explained how she was preparing

her home so that her children had a place to stay when she died.

[74] So for example, on 8 August 2016 the accused, in messaging Viwe about her

marital problems with the deceased had said:

25

‘I’ve given up completely on marriage. … I’ve told myself that I’m out of marriage. He

will never see me again at his home unless a child of mine dies. Now I’m fixing my

house. Should I die my children will have a place.’…

‘He has been in Queenstown since Monday of the special votes. I have had enough.

I am just an onlooker. Yesterday he came back and asked if he could be of

assistance. I said he should take a rake and clean up the yard. I’m busy extending

my house without his help.’ …

‘Let them continue, but people will laugh at him/her. I gave him a second chance and

he blew it. My family have given up. I have full support.’…

‘This person. I will even spit on him in his coffin.’14….

‘He has not even come close to me. He sleeps at a distance.’

[75] In response to the accused’s words (that she was extending her house

without the deceased’s help), Viwe had replied:

‘And that is a good punishment by keeping quiet and not asking anything. It will be like

a love potion, you’ll see. He is crazy over an old woman who has given multiple births

…. It will seem as if he has been bewitched. He is interested in an old lady who has

given birth many times.’15…

‘No, just leave him alone. Just condomise so he will not infect you with a sickness. The

children need you. … He is lucky you are not his, but God’s person.’16

[76] Dr Zondi performed an autopsy on the body of the deceased on 16 September

2016 and recorded his facts, findings and opinions (which were formally admitted) in

a medico legal post mortem report. In this report the deceased’s weight is reflected

as 115kg. He is described as “fat”.

14 The accused also make reference to spitting on the deceased’s coffin during a conversation on 20 August 2016 when she was again complaining about the deceased having neglected her. 15 According to Viwe the accused was jealous about a relationship which the deceased was having/cultivating with one Ms Bula who was known to Viwe. 16 When she testified the accused agreed that Viwe had given her this advice, and that she had accepted it.

26

[77] During his evidence, the doctor explained his chief post mortem findings (with

reference to the diagrams annexed to his report) in the following terms:

The wound marked “1” was caused by the projectile entering the anterior chest just

below the collar bone, travelling in an upward mobility and exiting at the left shoulder

(point “2”). The wound marked “3” (one of two fatal wounds) was caused by a second

projectile entering the left torso, travelling in a downward direction and exiting the

right torso near the kidneys at the point marked “4”. This projectile perforated the

jejunal mesentery and the jejunum, the right kidney and the right renal vessels. The

gunshot wound marked “5” (which was also described as fatal) entered the left torso

and travelled towards the back perforating the lumbar vessels and the third lumbar

bone but missing the spinal cord. It left behind a projectile which was removed from

the lumbar spinal region and handed to Warrant Officer Petzer.17 It damaged the left

kidney, lacerated the right kidney, and also caused damage to the right renal artery,

the right kidney and the mesenteric vessel. The deceased also sustained two

superficial gunshot wounds to the right of the torso, marked “7” and “8”.18

[78] All in all the deceased sustained eight gunshot wounds, four of them being

entrance wounds and three exit wounds. In other words, he was shot no more than

four times.

[79] The deceased’s stomach contained 650ml of partially digested food particles

consistent with the consumption of a carbohydrate meal immediately before he was

shot.19

[80] Dr Zondi testified that the deceased would have died rapidly (within 15 minutes

after having sustained the morbid injuries), as he was losing copious amounts of

blood from internal bleeding.20

[81] Lieutenant Colonel Gogela is an analyst at the forensic science laboratory in

Pretoria. At the time of her testimony, she had accumulated ten years’ experience in

the field of gunshot residue analysis. She testified that during 2016 she received

17 No evidence was presented about the fate of this projectile thereafter, except that Petzer filed it away in the SAP 13. 18 According to the doctor gunshot residue testing on the deceased’s clothes (which he had handed to Petzer) would have determined the status of these wounds (whether exit/entrance) with more particularity. There is no evidence that these tests were ever performed. 19 This is also consistent with the accused’s version that the deceased had been eating his breakfast cereal at the time. 20 The doctor testified that according to the hospital records the deceased was declared dead on arrival when he was brought into the hospital at 7.15am.

27

samples in respect of Cambridge CAS 264/09/2016 for primer residue testing. She

analysed the samples and prepared reports marked LAB 382316/16/1 and LAB

32316/16/2 respectively.

[82] She described primer residue as follows:

‘When a firearm is discharged the gases are being ejected through the exit of the

barrel as well as through all the openings of the firearm, that is sideways and in a

backward direction. When these gases descend through gravitational force, they are

deposited on the hands of the shooter and on any other object that is within a two

metre radius from the shooter, or on any other person that is close by.’

[83] The witness explained that if the target is within two metres from the shooter,

primer residue will be deposited on the target as well. The shooter, and any persons

or objects within a two metre radius of the shooter, including the target, are all

referred to as primary carriers of primer residue. She referred to the “two metre

radius” test as being the determining factor. The more shots fired, the more

concentrated would be the deposits of primer residue. If a third party were to touch

the target after the target had been shot, the third party could be contaminated by

what is referred to as the secondary transfer of the primer residue. The third party

would then be referred to as a secondary carrier.

[84] She said that if a secondary carrier were to be tested for the presence of primer

residue within four hours after the primer residue had been transferred to the

secondary carrier, the presence or otherwise and the quantity of primer residue

would depend on the secondary carrier’s hand activity (assuming that the test is

performed on the secondary carriers hands). Primer residue would, for example, be

erased from the hands by activities such as washing or wiping.

[85] The presence of primer residue is detected using a scanning electron

microscope coupled with an X-ray detector. The microscope detects the particle itself

and the X-rays assist to determine its chemical composition.

[86] The witness testified that she received a primer residue kit and a red jacket on

23 September 2016. She analysed the samples in the primer residue kit. The test

sample marked “M8506RIGHT” tested positive for primer residue. The test sample

marked “M8506LEFT” tested negative.

28

[87] She extracted two samples from the jacket, one from the outer right sleeve/cuff

(marked “E469RIGHT”) and one from the outer left sleeve/cuff (marked

“E469LEFT”). They tested positive for characteristic gunshot residue.

[88] Almost five months thereafter ,and on 1 February 2017, the investigating

officer requested her to conduct further analysis on the coat. She extracted a sample

from the inner left sleeve, a sample from the inner right sleeve, a sample from the left

pocket, a sample from the right pocket, a sample from the left front, a sample from

the right front, a sample from the inside collar, a sample from the outside collar, and

two samples from the inner front lining on the left and on the right.

[89] The following samples tested positive for a high concentration of characteristic

primer residue: the inner left sleeve, the inside and outside of the left pocket, the

inside collar, and the left and right inner front lining.

[90] The following samples were negative: the inner right sleeve, the right pocket,

the left and right outer fronts of the jacket and the outside collar.

[91] The witness was asked whether it was possible for primer residue to have

made its way onto the accused’s hand and her jacket, if she had, for example,

carried the deceased (assuming that the deceased had been within a two metre

radius of the shooter rendering the deceased a primary carrier). Her response was

the following:

‘It is possible M’Lady, but as I explained earlier, based on the results that I got I am

ruling out this possibility. … The reason why I am saying I am ruling it out, firstly, is

the amount of particles that I have detected. Secondly, it is the different areas that I

have detected primer residue particles from.’

[92] At the commencement of her cross-examination the witness reiterated that for

samples of the accused’s jacket to have tested positively for primer residue, and

assuming she was wearing the jacket at the time of the shooting, she could only

have been the shooter or within a two metre radius of the shooter when the

shot/shots were fired. She readily conceded however, that samples of the jacket

would also test positive for primer residue if the accused was not the shooter and

29

was also not wearing the jacket, but if the jacket was lying within a two metre radius

of the shooter when the shots were fired.21

[93] Indeed, for purposes of clarification, I dealt with this important issue as follows.

I put the following to her:

Court: Yes, now the other scenario which has been put to you is that if the red jacket

lay close to the shooter, assuming the shooter is not the accused, would you expect

to have found what you did with respect to her right hand and her jacket? ---

Witness: That one M’Lady, I could not say much, because now the Counsel could not

tell me exactly how was the jacket put, because that is very important, how was the

jacket put on the bed. … If the jacket was lying there next to the shooter, I would

expect a lot of particles.

[94] Warrant Officer Lelani was the prosecution’s last witness. He is employed at

the local criminal record centre (the LCRC) in King Williams Town. He attended the

scene at 11.45am on 14 September 2016 and took the photographs which Petzer

referred to in his evidence. He was also the leader of the team which took the scene

over from Petzer. He testified that when he met up with Petzer, Petzer stood outside

the main house and, without the assistance of any aides memoire, manage to

explain to him what he had found inside.22 They then went into the house and Petzer

pointed out the exhibits “that he might have seen”.23 Thereafter Petzer left and Lelani

combed the scene and took photographs using his own discretion.

[95] During his evidence he confirmed that there were four pins, buttons and an

earring scattered on the floor in the main bedroom near the empty jewellery box. In

particular, there was one button lying on the steps to the door between the main

bedroom and the garage. He seized this button because it looked as if it had blood

on it.

[96] The witness was referred to five photos in the album which he had compiled.

All of these photos portray a black background with a couple of blue spots here and

there, and the words “possible blood indications”. According to the witness a

21 The accused’s version is that this jacket was lying on the double bed in the main bedroom of their dwelling, and that she put it on after the deceased was shot and shortly before she escorted the deceased to the hospital. 22 According to Petzer he deferred to entries which he had made in his pocket book when he spoke to Lelani. 23 According to Petzer he did not point anything out to Lelani.

30

chemical called “Blue Star” is used to expose possible blood spots suspected to

have been wiped away, and which cannot be seen with the naked eye.24

[97] He testified that there was also a scratch mark on the laminated floor, the age

of which he was unable to determine, and which could have been caused by a

number of things. He was shown what is purported to be the shirt which the

deceased was wearing when he was shot. He said that the button which he had

seized (which he was unable to produce) appeared to be similar to a button on the

shirt. He also referred to three other buttons which he had apparently retrieved from

the floor of the main bedroom and said that they too, looked as if they had come

from the shirt. In his opinion then, it looked as if there might have been a struggle.

He referred to a photo taken of a spot in the ceiling of the main bedroom and said

that a bullet was found lodged there. It appeared to have ended up there after having

been fired through the door of one of the top cupboards. He said that on the floor of

the second bedroom he could see a red stain which looked like dried blood.

[98] It was during his evidence that a sketch plan of the scene was produced for the

first time. He was not asked by the prosecution whether he was the one who drew it.

I had to extract this information from him. With reference to the sketch plan he was

able to say that there were indications of what could have been blood in the garage,

on the button lying on the steps leading to the garage, on the floor of the main

bedroom, on the floor of the second bedroom, and on the passage floor adjacent to

the doorway leading to the third bedroom. He said that there also appeared to be a

bullet hole in the carpet on the floor of the second bedroom. There was also a spent

bullet lying in the garage.

[99] When the prosecution indicated that it was closing its case, I expressed my

concern about several documents, which were still in the lever arch file handed up

previously, and which remained unaccounted for, either by way of admissions or by

way of proof.25 I duly handed them back to the prosecution, indicating that I intended

disabusing my mind of their contents, subject to their proper reintroduction, if any.

Evidence for the defence

24 According to the key to the photo album these photos were taken in the main bedroom and in the passage the day after the shooting between 09.25 and 13.00. 25 I indicated that these documents commenced with a section205 statement from Old Mutual, followed by various other documents such as laboratory reports referring to two firearms, a document reflecting the time of the deceased’s death etc. etc.

31

[100] The accused testified in her defence. Her evidence on oath, two years after

the deceased was shot, remained materially consistent with what she related to VJ

on the way to the hospital, her affidavit obtained at the hospital, that which she

related to Dabs at the hospital, that which she told the deceased’s mother upon her

return from the hospital, her evidence on affidavit presented at her bail hearing

during October 2016 and her detailed plea explanation tendered at the

commencement of these proceedings. She also confirmed that which had been put

to the state witnesses on her behalf by her counsel.

[101] She testified that on the night preceding the shooting, she and the deceased

had slept together in their matrimonial home at [….]. On the morning of 14

September 2016, she got up and showered. She and the deceased made the bed in

which they had slept. The deceased gave her his clothes to iron. She started ironing

at about 6.15am while the deceased was bathing. Thereafter they both got dressed.

[102] She went to the kitchen to prepare their breakfast cereal. She heard the

deceased shouting outside near the kitchen. He said:

‘Go away! Voetsek! Voetsek!’

She had no cause to believe that there was an intruder. She thought that he was

chasing stray cats who would wander onto their property from time to time.

[103] She poured his cereal into a glass bowl and placed her own in a tupperware

mug. She proceeded to the main bedroom and found him entering the room via the

door linking the garage to the bedroom. She gave him his cereal and they ate. Whist

eating she took a red hat scarf and her red jacket from the wardrobe. She tried on

the hat scarf but decided not to wear it and placed it on their bed. She left the

deceased in the bedroom, still eating and went to the kitchen to prepare her lunch.

She heard what sounded like a glass dish falling on the floor.26 She called out to the

deceased. He did not respond.

[104] Immediately thereafter she heard what sounded like a firearm being

discharged. She was unable to recall how many times she heard this sound. She hid

herself in the corner of the kitchen near the stove.27 Everything blacked out. When

26 The accused said that in hindsight it sounded like a gunshot. 27 It is common cause that the accused was unable to see into the main bedroom from where she maintains she was positioned in the kitchen.

32

things became clearer again, all was quiet. She went from the kitchen down the

passage leading towards their bedroom. When she was in the passage she saw the

deceased. He was kneeling against the frame of the door leading from the passage

into their bedroom. He was facing in the direction of the garage. He said:

‘Take me to the hospital. I’ve been shot.’

[105] He was struggling to speak. At the time he was wearing a navy jacket, a

striped shirt, a white vest and navy trousers. The vest had blood on it. He already

had his car keys and his cell phone in his possession presumably because he was

about to leave for work in his car. Thereafter she took the following steps:

a. She went into the en-suite bathroom bordering the flat of their tenant,

Noligwa. She was hitting the wall and screaming for Noligwa. Noligwa did

not respond.

b. She phoned the deceased’s aunt (Dabs Gebe). She told Dabs that the

deceased had been shot and instructed her to call an ambulance. She did

not wait for Dabs to respond.

c. She pressed the panic button in the main bedroom.28 In less than a minute

the alarm company (ADT) phoned. She told them that her husband had

been shot and that they must call an ambulance and the police. She did

not wait for a response.

d. She then proceeded to assist the deceased to make his way towards the

garage. She walked ahead of him holding onto his elbows. It was difficult.

He was dragging his legs by himself. She helped him down the steps

leading to the garage. She was on her knees holding him. She only let go

of him in the garage when they were at the spot where the rug was

positioned between her car and the wall. He was then lying face down.

She saw that the deceased’s garage door and the main gate to the

property were both open. She opened her garage door. A car stopped

outside and a woman (who later turned out to be VJ) got out. VJ asked her

if she was alright. At the same time her tenant, Noligwa, appeared from

below the garage. She told VJ that her husband had been shot. At this

28 It is common cause that the house has two panic buttons: one in the main bedroom and one in the lounge.

33

stage she was standing in the garage next to the deceased who was lying

on his stomach. VJ took his pulse and confirmed that he was still alive. VJ

said:

‘Let’s pick him up and make him lean against the wall.’

She, VJ and Noligwa lifted him and propped him up against the wall so

that she could reverse her car out of the garage.

e. She went back into the bedroom, grabbed her car keys and reversed her

car out of the garage. VJ instructed her to open both the rear doors of the

car.

f. She, Noligwa and VJ lifted the deceased. She held the upper part of his

body. He was very heavy. When they were about to reach the car a

security official from ADT arrived and assisted them. He also held onto the

upper part of the deceased’s body.

g. Upon further instructions from VJ she collected a pillow and placed it in the

back of the car. She held him under his armpits and helped the others to

put him into the car.

h. She went back into the car to collect her wallet and her medical aid card,

which she could not find.

i. She took her jacket which was lying on their bed. She put it on as she was

moving from the main bedroom into the garage.

[106] When she got back VJ was already behind the wheel. She got into the front

passenger seat and they left. Before they left she closed the deceased’s garage

door. The entire ordeal from the time that she heard the first shot being fired until

they departed for the hospital took eight to ten minutes. They left for the hospital at

about ten past seven.

[107] They travelled along the Hemingways Mall route. VJ wanted to go to Beacon

Bay Life hospital but the accused refused and said they must go to St Dominics

Hospital which was closer. She was supporting the deceased’s body with her right

arm, so when her cell phone rang, VJ had to take the call. It was Dabs. VJ told her

that they were on their way to St Dominics. Before they reached the hospital VJ told

her not to hold onto the deceased as he was getting too hot.

34

[108] When they were about to turn in at St Dominics Hospital the deceased

coughed. They stopped in the emergency parking and got out. Nurses pushed an

orange board under the deceased’s body from the side of his head. The accused

was at his feet. One of the nurses pushed her away. They went in and VJ instructed

her to open a file. She did so. A nurse commented that the deceased was alright.

Dabs arrived. It was then that they were informed that the deceased had passed

away. The accused screamed, calling out his name and those of her children. She

collapsed. She was administered two sedatives for shock.

[109] She remained at the hospital for more than three hours. During that period

she became drowsy and was put to bed. Despite her drowsiness and despite

resistance from the nurses, Warrant Officer Petzer still took an affidavit from her. VJ

was there too, encouraging her to speak. She eventually went home in a brown Audi.

The crime scene had been cordoned off with yellow tape. There were many cars and

many people. VJ arrived with some clothes for her in a plastic packet. She was taken

into the house to collect her toiletry bag. It was then that she saw the bullet hole

through the cupboard in her bedroom for the first time. She did not see her jewellery

box again. It had mainly contained sewing material but also a pair of earrings which

she did not see again. She testified that when she ironed the deceased’s shirt that

morning, it did not have any buttons missing. She was unable to say how buttons

could have come off his shirt, if this evidence were to be accepted. According to her

recollection his shirt was still buttoned up when she and he reached the garage. But

she could not really remember. No other civilian entered the house in her presence

after the deceased was shot. It was first opened again by Petzer who had obtained

the remote control from VJ.

[110] On the following day, the police collected her and escorted her to the police

station. There she told them everything.

[111] The deceased had previously told her that he had been threatened regarding

his position at work as chief of staff in the office of the MEC for Social Development.

When he attended meetings in Queenstown he would call her and report that

members of the ANC had blocked his way and had held him hostage. Once he told

her that the tyres of his car had been slashed. He had to buy new tyres. She saw the

new tyres herself.

35

[112] She was arrested at the deceased’s family home on the night of 30

September 2016. She said that she believed that the police and the deceased’s

family had orchestrated her arrest.

[113] The accused denied that she and the deceased had been engaged in any

argument or physical altercation that morning. She said that they had marriage

problems like anyone else during their second marriage. If these had escalated, she

would have divorced the deceased. After all, she had done this before.

[114] She said that when Ayanda and Buntu were working on the DSTV installing

extra viewing in her main bedroom they saw the deceased’s firearm in the cupboard

where the TV set was situated. She told them that it was the deceased’s firearm.

She was not sure whether they handled the firearm. Ayanda asked her whether she

was not scared of the firearm lying around like that and whether there was no safe

for it. She told them there was no safe.29 It was in this context that she told them that

the deceased had said in the past:

‘I will scatter your brains one day.’30

[115] The accused mentioned that at her bail application it was alleged that she

was involved in an argument with the deceased that morning, because he had slept

out the night before. She said that although he did have many affairs, he slept at

home that night. She produced evidence of his car tracking device to confirm this.

This evidence was not challenged.

[116] She admitted the exchange of confidential messages between herself and

Viwe Dinga. She said that when she sent the messages on 8 and 20 August 2016

she was angry and had used the words about spitting on his coffin as a figure of

speech. She said she was angry on 8 August because he had not returned home the

previous day from Queenstown. She had been constrained to deal with domestic

chores on her own. She was also angry on the night of 20 August because they had

attended a funeral that day and he had not yet returned. She did not know where he

was. She accused the police of having chosen these messages selectively. She said 29 The accused explained that this firearm, which belonged to the deceased, was in safe custody with the Cambridge police at the time that the deceased was shot. It had been handed over to the police on 12 July 2016. 30 The accused added that she did not think the deceased was serious when he said this. They tended to fight one day and make up the next. Words such as these were similar to her saying that she would spit on his coffin one day.

36

that her phone and other conversations would serve as evidence that there were

many joyful and happy times between her and the deceased as well.

[117] She said she could not remember how her red jacket was lying on the bed

before she put it on. She said that she could not comment on how primer residue

was found both on the outside and on the lining of her jacket. Indeed, she was

surprised that primer residue was found on her right hand. Before her hands were

tested, she had used the bathroom at the hospital, and had washed her hands and

wiped them on the front of the jacket she was wearing. She took this jacket off and

the police seized it before they conducted primer residue tests on her hands. This

was at about 11am that same morning. She did not see the jacket again.

[118] She did not know how her jewellery box ended up on her bedroom floor. She

did not leave it there when she went to prepare breakfast that morning.

[119] In a nutshell, the accused denied that she played any part in the killing of the

deceased, or for that matter, in facilitating his murder or soliciting or engaging the

services of others to kill him.

[120] Retired Captain Wolmarans was called as a defence witness. He has been

a firearms handler for the past 53 years and his reputation as an expert in matters

pertaining to internal, external and terminal ballistics and fingerprint evidence

precedes him. After having inspected the scene he concluded that the bullet which

entered the door of the TV cupboard in the main bedroom was unstable. The

instability could have been caused by the bullet travelling through a person’s body.

Unfortunately, and if it did strike a person, it was not possible to say where the

shooter or the target would have been positioned in relation to each other or

anything else in the main bedroom. This aspect of his evidence was not challenged.

[121] Wolmarans was handed the two ballistics affidavits (deposed to by Captain

Kamteni) which I had handed back to the prosecutor at the close of the State’s case.

It was placed on record that the prosecution agreed with the facts, findings and

opinions reflected in these affidavits.

[122] The upshot of Wolmarans’s evidence, is that he agreed with what is

reflected in these documents with respect to the trajectory of the projectiles and

where they landed. He was unfortunately not able to assist with the primer residue

evidence as this is not his field of expertise, although he had taught personnel at

some stage about primer residue. He deferred to and agreed with Lt Col. Gogela’s

description of primer residue, how it is disseminated, where it may be found, and the

37

difference between a primary and a secondary recipient thereof. He was not

however, able to say how one can categorically distinguish between what he referred

to as original residue (primary residue) and secondary residue which he described

as residue which is transferred from something which has already been

contaminated.

[123] After calling, in my view, an inconsequential witness whom the police had at

some stage fruitlessly confronted about his licenced firearm, the defence closed its

case.

[124] Thereafter the prosecution applied to re-open its case, to somewhat

belatedly deal with Cpt. Kamteni’s evidence, purportedly to explain the presence of

certain evidence in the accused’s garden, which I will deal with in due course. The

application was not seriously opposed. I am not surprised. By all accounts the

prosecution were about to place the defendant’s star witness on the stand.

[125] Captain Kamteni works at the police forensic science laboratory in Port

Elizabeth. He has been there since 2008. He prepared the forensic affidavits which I

have already referred to.

[126] For ease of reference, and because of the importance of these documents in

this particular matter, I intend dealing with these affidavits contemporaneously with

his particularly insightful evidence on the witness stand.

The ballistic evidence

[127] The first affidavit is marked “A43” and the heading reads “LAB373917/16

CAMBRIDGE CAS 264/09/2016”31. It is an affidavit deposed to in terms of section

212(4)(a) of the Act. The relevant portions of this section read as follows:

31 It is trite that a criminal docket consists of three internal sections, an A clip, a B clip and a C clip. The A clip mainly holds the first information of the crime, statements and affidavits, medical and expert reports and affidavits and documentary exhibits such as photograph albums and plans, warrants of arrest, and sometimes even a precise of the case complied by the chief investigating officer. In the main however the A clip contains evidence which is filed in chronological order starting with A1. The B clip contains all correspondence in connection with the case, copies of negative reports, covering letters, receipts, press releases and anything which does not belong in the other clips. The C clip (referred to as the “investigation diary”) is reserved for police and prosecution correspondence and instructions with respect to the developments and problems in the matter. Thus “A43” simply means that this was the 43rd item filed under the A clip. The case administration system number (the CAS number) in this matter is Cambridge 264/09/2016, which is the same number reflected at the top of the affidavit.

38

‘Whenever any fact established by any examination or process requiring any skill- …

is or may become relevant to the issue at criminal proceedings, a document

purporting to be an affidavit made by a person … in the State .. shall upon its mere

production at such proceedings be prima facie proof of that fact …’

[128] In these affidavits Cpt. Kamteni set forth his extensive experience over the

past eight years, which, significantly, happens to included advanced crime scene

reconstruction. He testified that on 15 September 2016 the crime scene was pointed

out by Captain Somkhence, whom I assume purports to be the investigator in this

case. His mandate was “crime scene reconstruction” and “scene photography”, as

well as “bullet trajectory examination”.

[129] He detected three bullet holes in the top wardrobe door and cornice of the

main bedroom and a bullet in the ceiling. He spotted two possible bullet defects and

a possible bullet hole on the floor and in the carpet of the second bedroom.

[130] His trajectory examinations revealed that:

a. The bullet holes in the main bedroom were caused by one bullet which

perforated the top wardrobe door, hit the cornice and lodged in the

ceiling. The shot was probably fired in the main bedroom in an upward

trajectory.

b. The first defect found in the second bedroom was probably caused by a

bullet fired in an downward trajectory possibly in the passage outside the

second bedroom or in the second bedroom itself.

c. The two possible bullet holes in the floor rug in bedroom two were fired

in a downward direction with the shooter either in the passage outside

room two or in bedroom two itself.

d. The bullet found in the ceiling of the main bedroom was collected by

Warrant Officer Yelani of East London LCRC.

[131] The affidavit was deposed to at Port Elizabeth on 29 September 2016, two

weeks after the deceased was shot.

[132] The second affidavit has the same CAS number but the lab number is

amplified to read “37391/16 (2+3).

39

[133] Therein Kamteni states that on 23 September 2016 (nine days after the

deceased was shot), he received a sealed evidence bag from the case

administration section of his unit. Inside that was another bag containing:

a. Three 9mm parabellum fired cartridge cases which were marked A2, A7

and A13;

b. Two 9mm calibre fired bullets marked A12 and A15;

c. One 9mm parabellum calibre cartridge marked A10.

[134] He also received a second sealed exhibit bag containing a 9mm calibre fired

bullet marked B and a fired bullet jacket marked BB.32

[135] The third bag contained a piece of rug.

[136] Four days later, and on 27 September he received a sealed evidence bag

containing a 9mm fired bullet marked E.

[137] The next day he received an IBIS (the integrated ballistic identification

system which can link crime scenes) sealed bag containing a 7,65mm calibre fired

test bullet (fired from the deceased’s 7,65mm calibre CZ model VZOR semi-

automatic pistol with serial number 695965 (which appears to have been at

Cambridge police station at the time of the shooting, having been handed over by

the deceased before he was shot). After having completed his forensic

examinations, Cpt. Kamteni arrived at the following conclusions:

a. The bullets marked A12 and B3 were fired in the same firearm.

b. The bullets marked A15 and E were fired in a second firearm.

c. The cartridge cases marked A7 and A13 were fired in the same firearm.

d. The cartridge case marked A2 was fired in a second firearm.

e. The jacket marked BB is undetermined with the 7,65 test bullet allegedly fired in

the deceased’s firearm due to lack of sufficient marks. This led the captain to

conclude that exhibit BB “is possibly not related to the scene”.

[138] Kamteni explained that the projectile “BB” which was allegedly found in the

deceased’s garden consisted of a piece of jacket which was old and damaged and

which appeared to have been fired before the day the deceased was shot. He could

32 According to the plan and the photos, the bullet jacket marked BB was found in the yard of the home to the left of the deceased’s garage, as one faces the garaging.

40

see that the jacket had been fired in the deceased’s firearm but elected to describe

his findings as inconclusive due to the age and the condition of the projectile.

[139] What Captain Kamteni was able to conclude beyond any doubt, was that the

projectiles (which he had been informed came from the scene of this murder and

which has become common cause) had been fired from at least two 9mm pistols.

This much he made quite clear. He was in any event not challenged with respect to

this aspect of his evidence.

Analysis and evaluation of the evidence

The projectiles found

[140] This evidence is clear and undisputed. Spent projectiles from at least two

9mm pistols were seized at the scene. No evidence was led as to when and how

they were seized. I can only assume that it must have been after Captain had visited

and reconstructed the scene on 15 September 2016.

The primer residue

[141] Lt Colonel Gogela testified that she found characteristic primer residue at the

following places:

a. In a sample which purports to have been taken from the accused’s right

hand. Her evidence was silent on the strength of the concentration or

where exactly on the right hand the tests were extrapolated from. By all

accounts the latter information was not made available to her.

b. The left inner sleeve of the jacket;

c. The left and right outer sleeves/cuffs;

d. The left pocket (inside and outside);

e. The inside collar;

f. The left and right front inner lining.

[142] The concentration on the jacket was high.

[143] The following samples tested negative:

a. The right sleeve;

41

b. The right pocket;

c. The left and right lapels;

d. The outside collar.

[144] According to the authors French, Morgan and Davy, the presence of gunshot

residue (“GSR”) may not always indicate that a person discharged a firearm. The

possibility for misidentification of the shooter exists, as does the potential to

distinguish shooters from those who have acquired GSR through secondary transfer.

As at 2013, these authors were still advocating for further experiments employing

automated SEM-EDX (scanning electron microscopy, energy dispersive X-ray

analysis), which will hopefully add to our understanding of GSR transfer evidence

and continue to improve the accuracy of interpretations which are presented in court.

[145] I hasten to add that according to Lt Colonel Gogela’s lab reports she attended

a training course and workshop on primer residue analysis with SEM-EDX presented

by the Forensic Science Laboratory in 2008. Indeed, and also according to her

reports, she utilised this technique when she analysed the test samples. My difficulty

is not with the technique she used. It is with what the prosecution managed to

extrapolate from her during her testimony in order to place evidence before this

court, which, in the absence of any other highly persuasive evidence, alternatively; in

the absence of any other gainsaying evidence would, standing alone, be sufficient to

justify a conviction. This unfortunately did not happen. When asked for example

whether it was possible for the GSR to have made its way onto the accused’s hand

and jacket if she had touched the deceased after he was shot her response was that

she was ruling out the possibility because of the amount of particles detected and

the areas where they were found. For all intents and purposes, this extremely

important and somewhat complex expert evidence abruptly ended there. She was

not asked to explain what she meant by “the amount of particles”. She was not

asked to explain what she meant when she referred to a “high concentration” of

primer residue. She was not asked to explain where indeed a high concentration

ends, and a low concentration begins. She was not asked to furnish qualitative and

quantative evidence regarding primary and secondary residue.

[146] The learned authors I have referred to repeat that the detection of GSR on a

sample taken from the hands, face or clothing of an individual may not only indicate

that the individual has been in the vicinity of the discharging firearm, but also that the

42

person has made contact with surface onto which GSR has previously been

deposited (which in this case appears to be the jacket which was left in the main

bedroom where at least one shot was fired).

[147] In discussing this concept the authors opine that the most established and

refined technique is what is referred to as SEM-EDX. Employing this method

involves a dual approach to detection and analysis – particles are morphologically

detected via their size/shape characteristics and are examined for the presence of

certain elements. Careful examination of particles and an awareness of the context

in which they were found are therefore necessary. In the matter before me, the

forensic witness made it clear that forensic experts in her field do not attend upon the

scene and collect evidence themselves. They do not become a party to the

investigation. They do not insist on obtaining samples from other subjects or objects

directly or indirectly related to the scene. They simply take what they are given and

do what they are told. I am not in the least surprised that when it was suggested to

her that the accused’s red jacket may well have been within a two metre radius of

the shooter when it was lying on the bed, that she was unable to offer any useful

comment or to negate the suggestion. What she did say, was that if the jacket was

lying next to the shooter, she would have expected “a lot of particles” which is

exactly what she did find. She found a high concentration of PGR on the jacket.

[148] According to the authors subjects can also acquire GSR during arrest for

example. The presence of limited amounts of GSR on the hands of firearm-carrying

officers (such as policemen) and in police vehicles and facilities creates a real

potential for limited secondary transfer contamination. In the matter before me, it was

extremely important for the three witnesses who took samples from the accused’s

hands to explain in detail exactly what they did, exactly where on her hands they

obtained the samples from, how they went about this sensitive task and whether they

were not themselves previously contaminated when they did so. None of this

evidence was led.

[149] The authors Lindsay et al. found that in certain conditions shooters and

bystanders could not be distinguished from each other on the basis of GSR counts,

and concluded that areas such as the relative GSR counts and particle

characteristics taken from shooters as opposed to subjects who have made contact

with a surface carrying GSR have not been fully explored. Indeed, the results of a

43

series of experiments carried out by the Surrey Police Tactical Firearms Unit have

provided strong evidence that secondary transfer mechanisms can result in the

transfer of GSR particles to an individual who was not present when the firearm was

discharged. Furthermore, the population of particles detected on the subject

following a secondary transfer suggests that, in theory, a detectable tertiary transfer

may even be possible.

[150] These learned authors say that with reference to the applicability of these

findings, the results point to a number of possible implications for forensic protocol in

an investigation involving GSR analysis. When collecting samples, it is desirable to

sample, as soon as possible, as many surfaces and subjects that may have been

involved and in contact with the suspected shooter or firearm as possible. The

importance of ensuring the accuracy of these measures is underlined, and

accordingly, the need to manually verify and review the output of analysts is

stressed. The findings also emphasise the need to be aware that secondary

transfers may continue to operate during arrest, suspect handling or firearm seizure.

The findings from this study highlight the potential for GSR counts to assist in

distinguishing the shooter from individuals who have acquired GSR through

secondary transfer. Thus the implications of this study for a forensic investigation

include the necessity to sample from as many subjects and surfaces as possible, to

enable the reconstruction of the crime scene as accurately as possible. As I have

already said, none of this was done. The only tests that were performed were on a

pre-selected suspect and her red jacket.

[151] According to the writers the sizes of particles recovered from a shooter and

from secondary contact may indeed be very similar, and the presence of large

particles must not be assumed to be necessarily indicative of firing a gun.33

[152] It is also well documented that GSR can be easily tampered with and altered

due to its fine talcum powder like consistency. Its composition can be ruined by the

simple washing of hands or the dusting down of clothes. According to Los Angles

forensic toxicology expert witness Okarie Okarocka, the weight to be attached to

GSR evidence hinges on too many factors, which is one of the reasons why the FBI

33 The views expressed at paras 144 to 151 of this judgment have been taken from a research article in the 2014, 43rd publication of X-Ray Spectrometry (pages 56-61) titled “The secondary transfer of gunshot residue: an experimental investigation carried out with SEM-EDX analysis” by James French, Ruth Morgan and James Davey.

44

closed its GSR test laboratory way back in 2006. The authors opine that its safest

use is to corroborate a point, rather than to rely thereon as leading evidence.34

[153] It is in any event so that on the evidence as it stands, a reasonable possibility

exists that:

a. Any primer residue which may have been found could conceivably

have made its way onto the accused’s jacket which she says was lying

on their double bed when the deceased was shot. There is no

reconstructive evidence before me to suggest that the shooter was

more than two metres away from the bed.

b. The residue detected in a sample taken from the accused’s right hand

could at the very least have been transferred there when she assisted

the deceased indoors (her version in this regard stands

uncontradicted), outdoors, when she touched her coat when she put it

on, and/or when she wiped her hands on the front of her jacket after

she had washed them in the hospital (as demonstrated by her). There

is no evidence that the residue found in this sample was highly

concentrated. What is however significant is that some parts of the

jacket tested positive and some negative. In my view it is possible that

any residue which may have been in the right inner sleeve could also

have transferred onto her right hand when she pushed it through the

sleeve while dressing. This would explain while the right sleeve tested

negative.

c. As I have said, while the residue may have been removed when she

washed her hands, it could conceivably have been re-transferred from

her coat onto her hands when she wiped them on the front of her

jacket. That would explain why the front lapels tested negative.

d. It is also conceivable that the accused would have used one or both of

her pockets, which would explain why the right hand tested positive but

the right pocket negative.

e. All in all, a myriad of possibilities exist, but they may very well border

on speculation, and I do not have to rely on them in order to justify the

finding I intend making.

34 Forensic Toxicology: “The reliability of gunshot residue” Okarie Okoracha, 8 December 2017.

45

[154] That brings me to the question of whether the prosecution has established

any honest and reliable evidence which can to some extent be corroborated by the

primer residue evidence, as uncertain as it may be, and if so, whether the ballistic

evidence that two 9mm pistols were used does not, in any event have the effect of

cancelling the probative value of such evidence, when the test is after all proof

beyond a reasonable doubt.

The circumstantial lay witnesses

[155] Insofar as it may be necessary, I am constrained to briefly deal with the

value of the evidence presented by the relevant lay witnesses in this matter.

[156] Not much turns on the evidence of the deceased’s mother, Monica Ndudula.

She assisted the Court by sketching some of the background to the relationship

which existed between the accused and the deceased. It is clear that there is not

much love lost between the accused and her mother-in-law. What is relevant is that

the version which the accused told Mrs Ndudula that same day dovetails in all

material respects with what the accused told VJ (the first person she could talk to

immediately after the deceased had been shot), Dabs, Warrant Officer Petzer, on

affidavit at her bail application the following month, her detailed plea explanation at

the commencement of this trial, and her evidence on oath before me.

[157] Ayanda Tuswa and Buntu Jwaai do not take the matter any further. They are

not in a position to dispute that the firearm which they saw at the parties matrimonial

home belonged to the deceased, and that it was taken to Cambridge police station

for safekeeping after they saw it, but before the deceased was shot. Indeed, none of

this is in dispute.

[158] The tenant, Noligwa Mkungeka, did not impress me as a witness. She

deposed to at least three versions on oath. Some of these versions contain serious

allegations. All of these versions not only contain material contradictions within

themselves, but they also contradict each other. Noligwa explained that she changed

her version the very next day because she initially did not want to get involved, but

then decided to speak the truth because VJ had done so. I am not persuaded by this

explanation. It is not mere coincidence that Noligwa’s first affidavit, deposed to no

more than seven hours after the shooting, dovetails in material respects with the

accused’s consistent version, particularly in that the two of them had practically no

46

opportunity to collude before their affidavits were obtained. The following aspects of

her first affidavit have been, and still are, directly or by implication confirmed by the

accused:

a. That at about 6.45am Noligwa heard the accused shouting and crying for

her to come.

b. That when Noligwa first saw the accused the accused was in a state of

panic, and not this emotionless being who appeared not to have been

effected by the shooting at all (which is the picture which the prosecution

seeks to portray).

[159] Also, in her first affidavit, Noligwa categorically stated that she heard no

noise that morning, except for the accused crying and calling her. In contrast,

Noligwa’s second affidavit, taken after a lengthy interrogation by the police the next

day, is embroidered with fanciful detail, vivid description and material deviations from

the little that is reflected in her first version. For example, she talks about having

heard a “whistle” when she woke up, an hour earlier than the time mentioned in her

previous affidavit. To my mind, the time that she was awoken is not a factor which

Noligwa needed to lie about just because she did not want to get involved. I find it

both curious and inexplicable that she elected to commence the day an entire hour

earlier than in her first affidavit. Thereafter she immediately embarks on a minutely

detailed rendition of what took place next door, including verbatim repetition of words

and expressions allegedly used and conduct displayed which can only be intended

to directly incriminate the accused. Indeed, what Noligwa managed to do overnight,

was to substitute, on her version, the accused with the deceased as the person

crying out for help. This, in my view, is a quantum leap which cannot simply be

ignored.

[160] Her explanation that VJ had spoken the truth to the police and that she

wished to follow suit does not hold water. It is clear from the evidence that VJ

deposed to her detailed second affidavit after Noligwa’s second statement had been

taken. She conceded this much later on in her evidence.

[161] All in all, Noligwa mentioned eight occasions where she had deliberately lied

in her first affidavit after having taken a solemn oath to speak the truth. She was not

able to explain why VJ had posted messages confirming that she, Noligwa, had told

VJ to come over because the accused was crying (and not the deceased). This was

47

not her version in her second or her third statement on oath. Nor could she explain

why she was suddenly insisting that the accused had not touched the deceased,

when VJ had told her friends (twice) that the accused had helped to load the

deceased into her car (which has also been consistent with the accused’s version

throughout).

[162] I have already mentioned the number of occasions where Noligwa was

shown to have been disingenuous at some time or another during these

proceedings. The point is simply that I do not know which of her versions to take into

account in order to qualify her as a witness who is both honest and reliable, which, in

the light of the fact that Noligwa is a single witness regarding what transpired in the

deceased’s home directly before and after he was shot, is a call which I am

constrained to make. Indeed, it seems to me that the probabilities are that the simple

version which Noligwa presented before having spoken to anyone, and before

having been interrogated, appears to be closer to the truth than any of her other

versions. Timewise it is consistent with that mentioned by the other witnesses,

including the accused. Content-wise, she did not have the opportunity to embellish,

to fabricate or to be influenced when she deposed to it so soon after the event.

[163] The same applies to VJ. She strikes me as a forceful character who naturally

takes the part of the classical dramatis persona. She is given to dramatization. This

is evident from the way she took control of the scene from the outset. It is also

evident from the way she played off the drama to her friends on social media. It was

also very apparent when I observed her demeanour during the course of her

evidence. By way of illustration, in her affidavit deposed to at the hospital VJ states

that she saw a bullet hole in the house when she first arrived at the scene and that

she then asked the accused about a firearm. Factually and objectively, this cannot

be correct. When she deposed to this first affidavit she had not yet been inside the

house. Nor is there any evidence from the accused or the other witnesses that VJ

took it upon herself to question the accused about a firearm when she arrived on the

scene.

[164] She too, in her second affidavit deposed to three days later, insists that the

accused did not help at all, quite contrary to what she told her friends on social

media at her earliest opportunity to share her dramatic experience.

[165] I have already mentioned the aspects of her evidence which I find most

troubling. With VJ too, who has deposed to three versions on oath and a fourth on

48

social media, I simply do not know what to rely on. VJ, by her very nature, appears

to be tempted by hyperbole and is prone to exaggeration. If any, her purpose in this

trial was to demonstrate that the accused has been consistent in her version from

beginning to end. That much was revealed when she related the accused’s account

to her of what had just transpired when they were on their way to the hospital.

[166] DWO Petzer assisted this court at the very least to have some idea of what

the scene must have looked like after the shooting. If, and I repeat, if he did take VJ

into the house after the scene had been cordoned off, I am disappointed and he is

cautioned against the repetition of such irregular conduct. Of particular significance

however is his evidence that they searched the house and the surrounding premises

with a fine toothcomb, but could not find a mop with blood on it, nor could they find a

smoking gun/guns. The fact that they managed to find an old, rusty bullet jacket

buried in the garden is evidence that the search was intensive.

[167] As for the evidence of Dabs, I am of the view that she is, in all probability,

the most neutral witness in this trial. She was also in a position to provide this court

with a reliable time frame for significant events by reference to her cell phone

records. According to Noligwa’s first affidavit the drama unfolded at 06.45am when

she heard the accused crying and calling her. According to Dabs the accused

phoned her at 06.56am to advise her that the deceased had been shot and to

summons an ambulance. According to VJ she (VJ) arrived at the crime scene at

06.59am. By 7.10 at the latest (according to the accused) they were on their way to

the hospital. According to the hospital records the deceased was pronounced dead

on arrival at about 7.15am. This means that the entire drama was likely to have

unfolded over a period of not much longer than 30 minutes.

[168] Dabs did not try to create the impression that the accused was behaving with

no emotion whatsoever. She admits that the accused cried out when she heard that

the deceased had succumbed to his wounds, that the accused had to be given

tranquilisers, and that she even swopped shoes with the accused who was unsteady

on her feet. Indeed, I am inclined to believe that the accused, who strikes me as an

intelligent, alert and educated woman, would have had no problem feigning shock

and hysteria if she had been responsible for the shooting, and considered it

beneficial to her cause to throw herself into the dramatic role of the hysterical,

shocked and grieving widow.

49

[169] As for the messages between Viwe Dinga and the accused, it seems clear

that the accused was still experiencing problems in her second marriage. But in my

view, that is where it ends. Flighty and irresponsible expressions and emotive

remarks made in moments of anger, jealousy, rage or sadness, on their own, fall

way below what this court requires as proof beyond a reasonable doubt for a murder.

Like the somewhat inconclusive primer residue evidence, such statements should

best be relied on as corroboration for a case worth defending, and not as the be-all

and end-all of a mariticide prosecution.

[170] Turning to the accused herself, I can best describe her as a woman who has

made her best endeavours to prove her innocence without playing a cat and mouse

game with this court. In doing so, she has, by and large, abandoned the bouquet of

rights she is entitled to in terms of the Constitution, without prevarication or

hesitation. She entered into the potentially dangerous realm of making admissions

regarding matter which is way beyond the scope of her expertise and which does not

lie within her own personal knowledge. She has, for all intents and purposes, played

open cards with the authorities from the time that she was arrested, and also with

this court during her trial. When I say this, I do not ignore the fact that she is

obviously distancing herself from any problems in the second marriage, wishing to

portray herself in the best possible light in that regard. I accept that there were

problems in the second marriage. I accept that she made utterances in private and in

confidence which, I have no doubt, she would not have done if she knew that they

were going to be used against her in a murder trial. This does not qualify her as a

killer. As I have said, the accused has been consistent from day one. She made a

good impression on me in the witness box, and her evidence remained consistent

and clear. I have observed her carefully. Insofar as she seems to have been

expected, at the time of the shooting, to have acted with more dramatization, I can

only say this: The accused has had many opportunities throughout this trial to either

malinger or to genuinely be given to extreme emotional conduct. She has lost her

husband, the man who, by all accounts, had agreed to give their marriage a second

chance. Instead, she has elected to maintain her composure during the conduct of

these proceedings. This is the type of person she simply appears to be.

Conclusion

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[171] At the end of the day, this court is left with a very simple exercise: to consider

the weight to be attached to the inconclusive primer residue evidence on which the

state seeks to be rely, as opposed to the damning evidence of the two firearms. The

answer is obvious.

[172] The ballistic evidence is overwhelming. It emanates from the State’s own

witness and it has not been challenged. Even if the evidence of the circumstantial

witnesses was honest and reliable (which it is not) and even if the evidence

regarding the primary residue was highly persuasive (which it is not) this court is still

faced with the uncontested evidence that the projectiles submitted for ballistic testing

show that the probabilities are overwhelmingly strong that at least two 9mm firearms

were used in the commission of the offence, neither of which have been found

despite a diligent search. Neither of which have been found, when it is clear from the

objective evidence that the accused had little or no opportunity to readjust the scene

and to dispose of any weapon or weapons. This is a hurdle which the prosecution

was aware of long before the commencement of this trial, and which it has not been

able to overcome.

[173] Indeed, when I asked the prosecutor to comment on Cp.t Kamteni’s evidence

his response was the following:

“The evidence taken wholistically does not exclude the accused from the

commission of the offences, despite the existence of evidence that two

firearms might have been used.”

[174] In my view, such a submission on behalf of the party on whom the onus rests

to prove its case beyond a reasonable doubt, can only be described as frivolous,

vexatious and irresponsible.

[175] The duty of the prosecution is to seek justice, not to blindly and purposelessly

plunder after a conviction at all costs.35

[176] By virtue of s22(6) of the code of conduct for prosecutors in terms of the

National Prosecuting Authority Act of 1998 prosecutors must strive to be seen to be

consistent, independent and impartial. With respect to impartiality, prosecutors are

expected to take into account all relevant circumstances and to ensure that 35 Taken from the United Nations Guidelines on the role of prosecutors.

51

reasonable enquiries are made about evidence irrespective of whether these

enquiries are to the advantage or disadvantage of the alleged offender. They are to

assist the court to arrive at a just verdict. With respect to the administration of justice,

prosecutors are expected, throughout the course of the proceedings, to prosecute

the case objectively and fairly. It is expected of them to safeguard the rights of the

accused persons, in line with the law and in the line with applicable international

instruments required in a fair trial. They are expected, as soon as is reasonably

possible, to disclose to the accused person relevant prejudicial and beneficial

information in accordance with the law and the requirements of a Constitutionally fair

trial. A prosecutor does not have a “client” in the conventional sense. The prosecutor

acts in the public interest. He/she is not the legal representative for victims of crime.

[177] I find myself quite incapable of comprehending why the damning ballistic

evidence of Captain Kamteni was withheld from this court throughout the State’s

case. Indeed it may well have remained undetected altogether, but for this court

having expressed concerns about it, and but for it having been properly placed

before me during the defence case.

[178] Indeed, in the light of this damning evidence, I find it difficult to comprehend

why the accused was prosecuted on the grounds set forth in the State’s indictment,

or at all for that matter, particularly in that the prosecution has not called upon me to

find that the accused was, at all material times, brandishing two 9mm pistols.

[179] The test to apply when dealing with circumstantial evidence is set forth in R v

Blom 1939 AD 188 at 202 and 203. It is two-pronged:

a. The inference sought to be drawn must be consistent with the proven

facts. If it is not, the inference cannot be drawn.

b. The proven facts should be such that they exclude every reasonable

inference save the one sought to be drawn. If they do not exclude other

reasonable inferences, then there must be doubt whether the inference

sought to be drawn is indeed correct.

[180] At best for the prosecution, it has touched on a possible altercation between

the accused and the deceased before he was shot, when they were the only two

people in the matrimonial home. There is evidence to suggest that the couple had

marriage problems. There is evidence to suggest that the accused had some form of

primer residue on her right hand and on her red jacket on that day. On the other

52

hand, there is conclusive evidence in support of an irresistible inference that shots

were fired from at least two firearms when the deceased met his death. In the

circumstances, the only reasonable inference is not that the accused shot her

husband. On the contrary, and in the light of the evidence before me, the reasonable

inference is that she did not.

[181] On count two, the unlawful possession of an unlicenced 9mm parabellum

semi-automatic pistol, I found you not guilty. On court three, the unlawful possession

of ammunition for this pistol, I find you not guilty. On count one, the murder of your

husband Sakhekile Ndudula on 14 September 2016 at your matrimonial home, I find

you not guilty.

[182] You are discharged. You are free to go.

__________________ I T STRETCH 8 October 2018 JUDGE OF THE HIGH COURT

Appearances:

Counsel for the State: Mr S Mtsila

Director of Public Prosecutions, Grahamstown

Counsel for the accused: Mr M Maseti

Instructed by: S N Jiba Attorneys, East London