Zikhali v S (AR171/2024) [2025] ZAKZPHC 51 (23 May 2025)

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IN
THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL
DIVISION, PIETERMARITZBURG

 

Appeal
No: AR171/2024

In
the matter between:

 

NHLANHLA
NDABAZEZWE ZIKHALI                                                  

APPELLANT

 

and

 

THE
STATE                                                                                            

RESPONDENT

 

Coram:        
Chetty and Mossop JJ

Heard:         
16 May 2025

Delivered:   
23 May 2025

 

ORDER

 

On
appeal from: the Ngwelezane Regional Court (sitting as the court
of first instance):

1.  The appeal
against conviction is dismissed.

2. 
The appeal against sentence is upheld and the sentence of life
imprisonment imposed upon the appellant is set aside and is replaced

with a sentence of 20 years’ imprisonment.

3. 
The sentence is antedated, in
terms of the provisions of s 282 of the Criminal Procedure Act 51 of
1977, to 12 March 2024.

 

JUDGMENT

 

MOSSOP
J (CHETTY J concurring):

Introduction

 

[1] 
The appellant was convicted in the Ngwelezane
Regional Court of the murder of Ms Winile Zwane (the deceased), a
woman with whom
he had been involved in a romantic relationship. He
was sentenced to life imprisonment and now appeals against both his
conviction
and sentence.

 

The
appellant’s defence

 

[2] 
When called upon to plead to the charge, the appellant pleaded not
guilty, and his legal representative indicated that
the appellant
would assert that he was not at the place where the deceased was
killed but had left there earlier that day and had
gone to Mtubatuba.
His defence was, thus, an alibi and this was disclosed at the
commencement of the trial.

 

Alibis

 

[3] 
It is so
that there is no onus on an accused person to establish an alibi.
Where such a defence is raised, it is the task of the
State to
disprove it and to establish that the accused person was at the scene
of the crime. In R
v Mokoena,[1]
the court held that:

‘If the onus
is upon the Crown to rebut the alibi, as it certainly is, then the
evidence as a whole must be considered and the fact that the
accused
and his witness told stories, which in some respects disagree, does
not mean that the Crown case has been proved beyond
reasonable
doubt.’

 

[4] 
It follows
that if an alibi might be reasonably true, the accused must be
acquitted. As was pointed out in Mokoena,
the correct approach is to consider the alibi in the light of the
totality of the evidence presented to the court. In evaluating
the
evidence of an alibi, Holmes AJA observed in R
v Hlongwane that:[2]

‘At the conclusion
of the whole case the issues were (a) whether the alibi might
reasonably be true and (b) whether the denial of complicity
might reasonably be true. An affirmative answer to either (a) or
(b) would mean that the Crown failed to prove beyond
reasonable doubt that the accused was one of the robbers.’

 

[5] 
The Supreme
Court of Appeal in S
v Musiker[3]
observed that once an alibi has been raised, it had ‘to be
accepted, unless it was proved to be false beyond reasonable doubt’.

In S v
Burger and others,[4]
the same court held that it was worth noting that mere lies for an
alibi defence do not warrant ‘punishment for untruthful

evidence’. However, where an alibi is presented and it
contradicts the evidence presented before the court, and the alibi

later turns out to be a lie or a falsehood, this lie, together with
the other evidence of the accused as a whole, may point towards
the
accused person’s guilt in certain cases.

 

The medical evidence

 

[6] 
Given the observations made by the eyewitnesses to the murder, it is
first necessary to consider in some detail the post-mortem
report of
the pathologist, Dr F van Niekerk (Dr van Niekerk), who performed the
examination of the deceased’s body. His report,
received by the
trial court with the consent of the defence, noted:

‘Stab wounds –
Chest

Stab wounds – Right
Hip

Stab wounds – Right
Loin Area.’

 

[7] 
Expanding upon what he observed, Dr van Niekerk recorded that:

‘There is a plus
minus 5cm x 1cm stab wound just below the right clavicle to the
anterior chest wall. Massive blood loss occurred
in the right
thoracic cavitae. There are four other stab wounds to the chest.
There is a stab wound through the right hypochondrium.
There is plus
minus 720ml blood in the chest cavitae.’

 

[8] 
Dr van Niekerk went on to state that:

‘The blade
penetrated the apex of the right lung and the right pulmonary artery.
A stab wound penetrated the lobe of the right lung…

The blade penetrated the
right lobe of the liver…

There is a stab wound
through the right kidney.’

 

[9] 
Dr van Niekerk thus found the cause of death to be:

‘Multiple Stab
Wounds – Bilateral Haemopneumothorax.’

 

The
eyewitnesses

 

[10] 
The submission of counsel for the appellant in his heads of argument
that:

‘[t]he conviction
of the appellant is founded on the evidence of a single eye witness
(sic) who was a friend of the deceased …’

must
immediately be dispelled. There were two State witnesses who
testified to the events that led to the death of the deceased,
not
just one. Before us, counsel for the appellant, Mr Chiliza, correctly
acknowledged this to be the case.

 

[11] 
The evidence adduced before the regional court, and which was not
contradicted by the appellant, was that the deceased
and he had been
in a romantic relationship but that he had ordered the deceased to
leave the home that they shared, as he did not
approve of certain
aspects of her conduct. Rendered without a roof over her head, the
deceased had taken up lodgings with the second
State witness, who was
Ms Ntombi Ntuli, referred to by all as ‘Ma Mthethwa’ (Ma
Mthethwa). The deceased had been residing
with her for approximately
three days before her life was taken from her.

 

[12] 
Both Ma Mthethwa and the first State witness, Ms Nomonde Ncwane (Ms
Ncwane), testified that they had been drinking beer
on the day that
the deceased was murdered, namely 27 February 2023. Ma Mthethwa had
not been drinking as long as Ms Ncwane, as
she had left the place
where they were drinking and had gone home early to commence cooking
the evening meal. Ms Ncwane candidly
described her state of sobriety
as being:

‘… drunk …
but I was not too drunk …’.

 

[13] 
At around 21h00, Ms Ncwane explained that she was at her mother’s
homestead when she observed the deceased passing
by and she called
out to her. She testified that the deceased appeared to be in a happy
mood as she was singing. The deceased tarried
for a while at Ms
Ncwane’s mother’s homestead. Ms Ncwane testified that
there was ample electric lighting at the home
and there was a
powerful floodlight in close proximity to the homestead that lit up
its immediate environs.

 

[14] 
Ms Ncwane explained that the appellant, who was known in the area by
the moniker ‘Sgora’, then arrived at
her mother’s
home, walking quickly. She testified that she had known him for
approximately two years and that he resided
in the same area as she
did. Upon his arrival, he pulled the deceased by the arm, and she
fell, or was pushed, to the ground. The
appellant then stamped on her
with his feet and asked her where the police were that she had
apparently called for him. He taunted
her to call them again.

 

[15] 
Ms Ncwane
estimated that all this, and what happened next, occurred
approximately two and a half to three metres away from her.
The
appellant then produced a knife, reported by both eyewitnesses to be
an Okapi knife, and commenced stabbing the deceased. Stabbing
blows
were inflicted to the deceased’s chest and the left side of her
stomach, just below the rib cage.[5]
Ms Ncwane said that she fled to the nearby home of Ma Mthethwa and
reported to her what was happening.

 

[16] 
Ma Mthethwa testified that upon the arrival of Ms Ncwane at her home,
she immediately went to the scene of the attack
upon the deceased.
Disagreeing with the evidence of Ms Ncwane, she estimated that the
time then was around 19h00. Upon her arrival,
she observed the
deceased lying on her side and the appellant was still in attendance.
He was stabbing the deceased just below
the breast and was stabbing
her ‘very fast’. She made her observations of the scene,
and therefore of the appellant,
from a distance of approximately
three metres.

 

[17] 
The findings of Dr van Niekerk at the autopsy that he conducted on
the deceased’s body were considered in some
detail earlier in
this judgment. The observations of the two eyewitnesses accorded with
what Dr van Niekerk found upon examining
the deceased’s body.

 

[18] 
Ma Mthethwa testified that at one stage, the appellant rose up from
the deceased’s body and pointed his finger
at her and said to
her:

‘You, Ma Mthethwa.’

This
gave her a further opportunity to identify the murderer. Ma Mthethwa
was certain that it was the appellant, whom she had known
for
approximately seven years. They both resided at Slovo Village.

 

[19] 
In her evidence in chief, the State prosecutor enquired from Ma
Mthethwa what she would say if it was put to her that
the appellant
was not at the scene of the crime. Her response was:

‘I will dispute
that, Your Worship, because I am being truthful. I know even his
walk, that is the accused’s walk. And the
clothes that he was
wearing on that day, Your Worship.’

 

[20] 
Ma Mthethwa conceded that she had been drinking beer earlier in the
day but said that she was sober at the time that
she observed the
appellant stabbing the deceased. Under cross-examination, she could
not be made to depart from her version of
events. When asked whether
she simply assumed that the appellant carried, and utilised, an Okapi
knife, her rejection of this proposition
was detailed and convincing:

‘Your Worship, I am
not assuming. I have seen him before carrying a knife and I saw him
again when he was stabbing the deceased.
As he was in a process of
stabbing, when he was pulling up his hand and stab, I could see the
blade. And I could see the ring that
is usually put in an Okapi
handle, Your Worship.’

 

[21] 
The appellant’s version was put to Ma Mthethwa thus:

‘The accused will
tell this Court that he left in the afternoon on the very same day,
and he went to Mtubatuba. At the time when
the deceased was killed,
he was not in the area.’

That
proposition elicited the following reply:

‘He was there, Your
Worship, I saw him at the scene, Your Worship.’

 

The
appellant’s case

 

[22] 
The appellant testified in his defence and confirmed that he had
ordered the deceased to leave his home. He acknowledged
that he had
seen the deceased on the day of her death in the street near Ma
Mthethwa’s home. He had informed her that he
was going to
Mtubatuba, and he had then departed for that place. He was asked by
his counsel whether he told anyone else about
his intention to go to
Mtubatuba and responded in the following fashion:

‘Most people knew,
especially my customers because I sell charcoal at Slovo, so I did
inform my customers that I will be gone from
Monday until 2 to 3
weeks because it was a season to harvest reeds.’

 

[23] 
He testified that he returned to his home on 9 March 2023 and was
arrested the next day and repeated that he was at Mtubatuba
when the
deceased was murdered.

 

[24] 
The solidity of the appellant’s alibi began to exhibit some
vulnerability when he was asked earlier in his testimony
about what
time he had left to go to Mtubatuba. He initially said he had done so
at 15h30. When his legal representative put the
version of the first
State witness to the appellant, namely that she had seen him on the
evening of 27 February 2023 at her mother’s
home, the appellant
responded as follows:

‘I do not know
because I left around – I left Slovo around 15:00. So, what happened
after or later in the afternoon I do not know
anything about.’

The
time that he allegedly left his home had, thus, shifted.

 

[25] 
The issue of the lighting at the scene of the murder was canvassed by
the appellant’s legal representative with
the appellant. The
earlier evidence of the two eyewitnesses was that an external
floodlight had cast light over a large area, permitting
the murder of
the deceased to be easily observed. To this, the appellant commented
as follows:

‘There was a light
that provided light in that area but it was switched off.’

That
version was never put to any of the State witnesses. Their evidence
on the adequacy of the external light accordingly went
undisturbed
and unchallenged and must be accepted.

 

[26] 
The second State witness, Ma Mthethwa, had given a description of the
appellant’s clothing during her evidence.
She had described him
as wearing white oversized trousers and a khaki-coloured shirt. The
appellant admitted that he owned a khaki-coloured
shirt. As regards
the white trousers, after initially denying that he owned such
trousers, and asserting that he had black trousers
that he would wear
when going ‘coal harvesting,’ his legal representative
asked him again whether he possessed white
trousers. He changed his
answer and responded thus:

‘I did, Your
Worship, prior the incident, maybe November towards the end of 2022
but I later damaged it.’

 

[27] 
The appellant could think of no reason why either of the two State
witnesses would falsely put him at the scene of the
murder. He
mentioned that he had once bravely entered a burning house that
belonged to Ma Mthethwa and rescued her six-month-old
baby from
certain death. Ma Mthethwa, in his opinion, should therefore be
well-disposed towards him. All that he could advance
in his
explanation of the eyewitnesses’ damning evidence was that they
were mistaken.

 

[28] 
Under cross-examination, the appellant then denied that he forced the
deceased to leave his home. When it was pointed
out to him that the
evidence led by the State witnesses to this effect had not been
challenged, the appellant countered this difficulty
by stating that
he did not know that he was supposed to deny this evidence.

 

[29] 
As regards the observations made by Ma Mthethwa at the scene of the
murder when she identified the appellant as the murderer,
the
appellant agreed that the distance from which she made her
observations, approximately three metres, was a very short distance.

He explained further as follows:

‘Yes, the distance
is very short. There is nothing that can obstruct a person to
identify a person they know but, however, I was
not there.’

 

[30] 
In making that statement, the appellant inadvertently identified the
very essence of the matter. He had been known to
the State witnesses
for several years. And they were both in close proximity to the
murderer at the place where the murder was
carried out and from where
they made their observations. The scene was lit by an external
floodlight. In those circumstances, it
would be important for him to
offer compelling evidence of why a mistake was being made by the
State witnesses in describing him
as being the murderer.

 

[31] 
While I have already explained that the appellant bore no onus to
establish his alibi, he would, perhaps, have been able
to dispel the
powerful case presented by the State by calling a witness, or
witnesses, who could confirm that he had left Mtubatuba
and was at
his family home at the critical time. But the appellant called no
witness of any kind to substantiate his version. None
of his charcoal
purchasing customers came to testify that they knew he was not in the
area at the time of the murder. None of his
family members came
forward to state that he was at the family homestead in Mtubatuba.

 

Analysis:
conviction

 

[32] 
The evidence adduced by the State was that of two
witnesses who had known the appellant for several years and who made
their observations
regarding the murderer’s identity from a
short range. The presence of the floodlight permitted such
observations to be made.
Experience
and common sense teach that persons who have known each other for
extended periods of time are unlikely to misidentify
each other,
especially at close range. The appellant himself conceded this to be
the case. Even if the evidence of the first State
witness was
discounted because she had been drinking earlier, which I do not
believe that it should have been, the evidence of
Ma Mthethwa placed
the issue of the identity of the murderer beyond doubt.

 

[33] 
To this, the appellant offered an unconfirmed alibi. In
my view, an alibi is only as
good as its details and the details in the appellant’s alibi
are, in my view, singularly lacking. The alibi,
in truth, is simply
provided by the applicant himself. That unsubstantiated version
cannot in the circumstances raise a reasonable
doubt as regards the
direct eyewitness testimony of the two State witnesses. Their
familiarity with the appellant and their immediate
proximity to the
scene of the murder renders it entirely unlikely that the appellant’s
self-proclaimed alibi might reasonably
be true. It follows that his
denial of complicity in the murder of the deceased must also be
false, and the reasoning referred
to in Burger
therefore finds application.

 

[34] 
In my view,
after a balanced consideration of all the evidence, the State
established beyond reasonable doubt that the appellant
was at the
scene of the crime and that he was the murderer of the deceased. The
court a quo was accordingly correct to accept the
evidence of the
State witnesses, notwithstanding the admitted condition of the first
State witness. The evidence of the two eyewitnesses
demonstrated the
falsity of the alibi. The appellant was, therefore, correctly
convicted.

 

Analysis:
sentence

 

[35] 
The
appellant was sentenced by the trial court to life imprisonment for
brutally butchering the deceased, the woman with whom he
had, until
very recently, been content to share a home with. The basis for the
imposition of that sentence was the allegation by
the State that the
appellant was guilty of premeditated murder, as contemplated in s
51(1) of the Criminal Law Amendment Act 105
of 1997 (the Act).[6]
If the appellant was guilty of planning the death of the deceased and
then executing that plan, then that is the end of the appeal,
for the
sentence imposed upon him would have been entirely appropriate and
would be the ordained sentence in terms of the Act. 

 

[36] 
It, however,
cannot simply be assumed that because the deceased’s death was
violent and cruel, her murder was premeditated
or planned. There very
often is evidence of premeditation that the State can lead. It can be
adduced, for example, by witnesses
who have knowledge of events that
led up to the crime being committed. But sometimes there is no such
evidence, and the court is
then required to employ inferential
reasoning by considering the
facts found to have been proven and to then deduce from those facts
whether it was established that the commission
of the offence was
premeditated or not.

 

[37] 
In S
v Raath,[7]
the court remarked that the legislature had made no attempt to define
the meaning of ‘planned’ or ‘premeditated’

when crafting the Act. The court expressed itself on the issue as
follows:

‘Clearly
the concept suggests a deliberate weighing-up of the proposed
criminal conduct as opposed to the commission of the crime
on the
spur of the moment or in unexpected circumstances. There is, however,
a broad continuum between the two poles of a murder committed
in
the heat of the moment and a murder which may have been conceived and
planned over months or even years before its execution
… only
an examination of all the circumstances surrounding any particular
murder, including not least the accused’s state
of mind, will allow
one to arrive at a conclusion as to whether a particular murder is
“planned or premeditated”. In
such an evaluation
the period of time between the accused forming the intent to
commit the murder and carrying out this intention
is obviously of
cardinal importance but, equally, does not at some arbitrary point,
provide a ready-made answer to the question
of whether the murder was
“planned or premeditated”.’

 

[38] 
In
its reasoning, the court in Raath
appeared to draw no distinction in meaning between the words
‘planned’ and ‘premeditated,’ and they were

both considered to describe the same type of conduct. However, a
distinction was drawn between the meaning of those two words in
S
v PM,[8]
a matter decided five years after Raath
was decided.
‘Premeditated’
was found to mean: [9]

‘… something
done deliberately after rationally considering the timing or method
of so doing, calculated to increase the likelihood
of success, or to
evade detection or apprehension.’

‘Planned’,
on the other hand, was found to mean a reference to: 

‘… a
scheme, design or method of acting, doing, proceeding or making,
which is developed in advance as a process, calculated to optimally

achieve a goal.’

It
seems to me that the court strained, unnaturally, to divine a
difference in meaning in the two words.

 

[39] 
In S
v Jordaan,[10]
decided four years after PM,
the court found the attempt to discern a difference between
‘premeditated’ and ‘planned’ to be
unconvincing
and concluded that the element of ‘rational
consideration’ referred to by the court in PM in
its definition of ‘premeditation’ was equally inherent in
any exercise of planning.

 

[40] 
The
Supreme Court of Appeal was presented with an opportunity to consider
the meaning of the two words in Montsho
v S.[11]
However, Petse JA, with whom the rest of the court concurred, stated
that:

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

 

[41] 
In my view,
both words amount to the same thing, and I am inclined to follow the
reasoning in Raath
and Jordaan.
After all, the dictionary meaning of ‘premeditated’ is:

‘To
think out and plan an action, especially a crime, beforehand.’[12]

The
definition of the one word thus includes a reference to the other
word.

 

[42] 
Was there any evidence that the murder was premeditated or planned?
No direct evidence on that score was led by the State.
The only
witnesses called by the State were those who witnessed the brutal
attack, but they did not speak about what may have led
to it. There
was no evidence of the appellant’s state of mind. There was,
however, evidence that the appellant had ordered
the deceased from
his home a few days before he killed her but none of the State
witnesses seemed to have any knowledge of why
he wanted her to leave
his home. The ejectment of the deceased from his home provides no
certainty that the appellant intended
to kill the deceased. On the
contrary, it would tend to indicate that was not his intention.
Furthermore, on the day of the murder,
there was nothing to indicate
that the appellant knew where the deceased was and it is possible
that he randomly came upon her.
The evidence presented by the State
was extremely limited and involved the appellant coming across the
deceased at the scene, grabbing
her by the arm, asking her where the
police were, forcing her to the ground, and then stabbing her to
death. The murder was carried
out in full view of several witnesses.

 

[43] 
In
coming to the conclusion to which I am inescapably drawn, I do not
lose sight of the words of the Supreme Court of Appeal in
Kekana
v S,[13] when
it was stated that:

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

 

[44] 
I am,
however, on the scarcity of the evidence adduced by the State, unable
to confidently conclude that this callous murder was
premeditated or
planned. It could just as easily have happened without any planning,
occurring spontaneously in a fit of rage.
The fact that it was
carried out in the presence of witnesses tends to suggest that to be
the case. As was said in
Dlomo
v S:
[14]

‘There
are too many variables that would need to align to make it a
premeditated murder. I do not accept that the time between the

appellant seeing the deceased at the bottle store and the moment that
he shot him constitutes evidence of premeditation. If that
were the
case, virtually all murders would be premeditated.’

 

[45] 
Furthermore, the fact that the appellant carried an Okapi knife in
his pocket is no indication of a prior intention to
commit murder.
Indeed, Ma Mthethwa testified that she had often seen the appellant
with such a knife. I am, in the circumstances,
not persuaded that the
State established that the murder was premeditated.

 

[46] 
In the circumstances, the sentence imposed upon the appellant cannot
stand. Murder that is not premeditated falls within
Part II of
Schedule 2 to the Act and imprisonment for a period of 15 years is
the ordained minimum sentence. That minimum sentence
may be reduced
upon the establishment of substantial and compelling circumstances
being established. Conversely, it may also be
increased, subject to
the provisions of s 51(2) of the Act, which read as follows:

‘Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person who
has been convicted
of an offence referred to in –(a)  Part II of Schedule 2,
in the case of –

(i)  a first
offender, to imprisonment for a period not less than 15 years;

…

Provided that the maximum
term of imprisonment that a regional court may impose in terms of
this subsection shall not exceed the
minimum term of imprisonment
that it must impose in terms of this subsection by more than five
years.’

 

[47] 
In this matter, the appellant was in custody awaiting trial for a
period of seven months, which must be factored in when
arriving at an
appropriate sentence. He was a first offender, was 44 years of age
when sentenced and was unmarried but had two
children. He was a
self-employed charcoal manufacturer who earned approximately R7 000
per month from this enterprise.

 

[48] 
Nothing of any significance was adduced by the defence to justify a
finding that substantial and compelling circumstances
had been
established to warrant a softening of the prescribed minimum sentence
and the regional magistrate was correct, in my view,
in finding that
there were none. The violence and the cruelty of his attack upon the
deceased in any event suggests that a more,
rather than a less,
severe sentence must be imposed upon the appellant. Our society is
beset with the scourge of violent, gender-based
crimes where women
are the helpless victims. This sad indictment of our society must be
combatted by the imposition of appropriate
sentences that will serve
to deter others from committing similar acts.

 

[49] 
After reflection, I am of the view this is an instance where the
prescribed minimum sentence should be increased by the
permitted
period allowed by the Act and that a sentence of 20 years’
imprisonment should replace the sentence of life imprisonment.
The
sentence shall be antedated to the date upon which sentence was first
imposed upon the appellant.

 

Order

 

[50] 
I would accordingly propose the following order:

1.  The appeal
against conviction is dismissed.

2.  The appeal
against sentence is upheld and the sentence of life imprisonment
imposed upon the appellant is set aside and
is replaced with a
sentence of 20 years’ imprisonment.

3. 
The sentence is antedated, in
terms of the provisions of s 282 of the Criminal Procedure Act 51 of
1977, to 12 March 2024.

 

MOSSOP J

 

I agree and it is so
ordered:

 

CHETTY J

 

APPEARANCES

 

Counsel
for the appellant:                             

Mr E M Chiliza

 

Instructed
by:                                                 

Legal Aid South Africa

                                                                      

Durban Local Office

                                                                      

Ground Floor

                                                                      

The Marine Building

                                                                      

22 Dorothy Nyembe Street

                                                                      

Durban

 

Counsel
for the respondent:                          

Ms O Mdladlamba

 

Instructed
by:                                                

Director of Public Prosecutions

                                                                      

KwaZulu-Natal

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