THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 868/2011

Not Reportable

In the matter between

JABULANI KENNY SITHOLE

Appellant

and

THE STATE

Respondent

Neutral citation:
Sithole v S (868/11) [2011] ZASCA 85
(31 May 2012)

Coram:
MTHIYANE DP, KROON and SOUTHWOOD AJJA

Heard:

17 May 2012

Delivered:

31 May 2012

Summary:
In deciding whether to convict or acquit the court must take all the
evidence into account – if accused’s version improbable court cannot convict unless
it can find that it is so improbable that it cannot be reasonably possibly true.

___________________________________________________________________
ORDER
___________________________________________________________________
On Appeal from:
North Gauteng High Court (Pretoria) (Hartzenberg J and
Mabuse AJ sitting as court of appeal) dismissing the appellant’s appeal against
convictions by the Nelspruit Regional Court of assault with intent to do grievous
bodily harm and murder.
Appeal upheld and order of the court below set aside and replaced with
following order:
‘The appeal is upheld and the convictions and sentences are set aside.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SOUTHWOOD AJA (MTHIYANE DP AND KROON AJA concurring)
[1] On 21 September 2005 the appellant was found guilty in the Nelspruit
regional court of assault, assault with intent to do grievous bodily harm and murder
and on 22 September 2005 he was sentenced to 3 months imprisonment for the
assault, 6 months imprisonment for the assault with intent to do grievous bodily harm
and 15 years imprisonment for the murder. The regional court ordered that all the
sentences run concurrently. On 17 August 2009 the appellant’s appeal against the
convictions of assault with intent to do grievous bodily harm and murder was
dismissed by the Pretoria High Court which immediately granted leave to appeal to
this court.

[2] The relevant convictions were based on the evidence of a single witness,
Rose Nkosi, and the medico-legal post-mortem examination report which was
handed in by agreement. The principal finding in the report was that the deceased,
Pinini Lucas Zwane, sustained a single stab wound which penetrated his chest close
to the sternum, between the third and fourth ribs, and caused his death. Only the
appellant testified in his defence.

[3] The incident took place at night at a village in the Mganduzweni Trust where
the appellant’s and the deceased’s girlfriends, respectively Doreen Vilakazi and
Rose Nkosi, resided. It was not in dispute that at about 18:00 on 14 August 2004 the
appellant arrived to visit Doreen and their five year old child and that when he saw
Nico, one of Doreen’s relatives, at the gate of her home the appellant wrongly
assumed that Nico was courting Doreen and flew into a rage and chased him away
from the house. There is no evidence that at that stage the appellant was armed with
a knife. It is also not in dispute that when the appellant returned to the house, angry
words were exchanged between the appellant and Doreen and that he slapped her
more than once and chased her when she ran away. It is also not in dispute that
Doreen ran to Rose Nkosi’s house where she took refuge until she and the appellant
were ordered to leave by Rose’s mother and that they both slept at appellant’s aunt’s
house and that neither was aware of the other’s presence there. The acts involving
Rose Nkosi (resulting in the conviction of assault with intent to do grievous bodily
harm) and the deceased (resulting in the conviction of murder) took place after the
appellant left Rose Nkosi’s house.

[4] Although the appellant admitted that he stabbed the deceased there are two
mutually destructive versions as to how this happened. It is common cause that
Rose Nkosi sustained a stab wound in the forearm when she attempted to separate
the appellant and the deceased while they were wrestling with each other.

[5] Rose Nkosi testified that she and the deceased were sitting in the deceased’s
motor vehicle which was standing in front of her house when the appellant
approached the vehicle in the company of two ‘boys’ whom she did not recognize.
The appellant approached her side of the vehicle and apparently wanted to open the
door but she locked it. The appellant then walked around to the driver’s door and,
according to Rose, the appellant asked the deceased if he, the deceased, wanted to
talk and the deceased got out of the vehicle. Without any discussion or provocation
the appellant produced an Okapi knife and stabbed the deceased. Rose did not see

where the appellant got the knife from and where he stabbed the deceased. All she
saw was the blood on his chest. Rose then got out of the vehicle and tried to
separate the appellant and the deceased. In the process Rose was stabbed on the
left forearm. She could not explain how this happened. She and the deceased then
ran away and hid next to the pump at the river where the deceased collapsed. He
died shortly afterwards.

[6] The appellant testified that after his altercation with Doreen Vilakazi he went
to ask Rose for payment of the purchase price of some perfume which he had sold
her. Rose said to him that he had turned against her because he had failed to catch
the person he was chasing and told him that the perfume was useless. The appellant
replied that if that was so she should return the perfume to him and Rose started
shouting at him. She told him that Pigza (the deceased) is the only person who could
control him. When Rose shouted at him, the appellant left. On his way back to
Doreen’s house a car stopped next to him. The deceased was driving and Rose was
sitting next to him. Rose pointed at the appellant and said ‘this is the man’ and said
something insulting to him. The appellant replied that he would not speak to her as
she is a woman and only the deceased would understand him because he is a man.
The deceased then called him over to the car. When the appellant reached the car,
the deceased, without saying a word punched him and they started to wrestle and
both fell down. They were still wrestling when the appellant managed to get to his
feet. He heard Rose say ‘Pigza catch’ and she tossed a knife to the deceased. The
knife fell between the appellant and the deceased and the appellant grabbed it
before the deceased could and they wrestled with each other for possession of the
knife. While they were wrestling Rose tried to separate them. She came between
them and he heard her cry out. He did not stab her deliberately and he could not say
whether he stabbed her by accident or not. He agreed that he stabbed the deceased
– he could not say how this happened or how many times – but this happened while
they were standing upright, struggling for possession of the knife. He did not see
where he stabbed the deceased. After the incident he dropped the knife and he does
not know what happened to it. The appellant denied that he was the aggressor and
said that he was defending himself. He did not stab the deceased deliberately.

[7] The regional court found that Rose Nkosi was a credible witness and that her
evidence was corroborated by Doreen Vilakazi’s evidence and, accordingly, that her
evidence could be accepted. The regional court also found that Rose’s evidence was
clear, straightforward and logical and that there was not a single improbability in her
evidence. The regional court did not find that the appellant had contradicted himself
or had deviated from his version but found that it could not believe a word of the
appellant’s testimony. This was because of the improbabilities in the appellant’s
evidence: the timing of the appellant’s demand for payment; Rose Nkosi throwing a
knife to the deceased while he was fighting with the appellant; the appellant’s ability
to pick up the knife; the appellant’s inability to remember when he stabbed the
deceased and the appellant’s inability to explain how Rose was stabbed. The
regional court therefore found that the appellant had not acted in self-defence and
had deliberately stabbed Rose Nkosi and the deceased.

[8] The State bears the onus of establishing the guilt of an accused beyond
reasonable doubt and he is entitled to be acquitted if there is a reasonable doubt that
he might be innocent.1The onus has to be discharged upon a consideration of all the
evidence. A court does not look at the evidence implicating the accused in isolation
to determine whether there is proof beyond reasonable doubt nor does it look at the
exculpatory evidence in isolation to determine whether it is reasonably possible that
it might be true. The correct approach is set out in the following passage from
Mosephi and others v R LAC (1980 – 1984) 57 at 59 F-H:
‘The question for determination is whether, in the light of all the evidence adduced at the
trial, the guilt of the appellants was established beyond reasonable doubt. The breaking
down of a body of evidence into its component parts is obviously a useful guide to a proper
understanding and evaluation of it. But, in doing so, one must guard against a tendency to
focus too intently upon the separate and individual part of what is, after all, a mosaic of
proof. Doubts about one aspect of the evidence led in a trial may arise when that aspect is
viewed in isolation. Those doubts may be set at rest when it is evaluated again together with

1 R v Difford 1937 AD 370 at 373, 383; S v Van der Meyden 1999 (1) SACR 447 (W) at 450a; S v Van
Aswegen 2001 (2) SACR 97 (SCA) para 8.

all the other available evidence. That is not to say that a broad and indulgent approach is
appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and
critical examination of each and every component in a body of evidence. But, once that has
been done, it is necessary to step back a pace and consider the mosaic as a whole. If that is
not done, one may fail to see the wood for the trees’.2
In weighing the evidence of a single State witness a court is required to consider its
merits and demerits, decide whether it is trustworthy and whether, despite any
shortcomings in the evidence, it is satisfied that the truth had been told.3 It must state
its reasons for preferring the evidence of the State witness to that of the accused4
so that they can be considered in the light of the record. In applying the onus the
court must also, where the accused’s version is said to be improbable, only convict
where it can pertinently find that the accused’s version is so improbable that it cannot
be reasonably possibly true.5

[9] With regard to the conviction of assault with intent to do grievous bodily harm
it is clear that the regional court erred in finding that the accused deliberately
stabbed Rose ‘to get her away from him so that he can direct his aggression at the
deceased again’. There is no evidence that the appellant deliberately stabbed Rose.
Neither Rose nor the appellant could explain how she was injured and it is common
cause that this happened while the deceased and the appellant were wrestling with
each other and Rose attempted to separate them. The regional court introduced the
finding by saying ‘we believe’ but did not refer to the facts. The evidence does not
support their belief or the finding and the appellant’s appeal against this conviction
must succeed.

[10] As far as the conviction of murder is concerned the regional court’s reasoning
cannot be sustained.

2 Quoted with approval in S v Hadebe & others 1998 (1) SACR 422 (SCA) at 426f – h; S v Mbuli 2003
(1) SACR 97 (SCA) para 57.
3 S v Sauls 1981 (3) SA 172 (A) at 180C–G
4 S v Guess 1976 (4) SA 715 (A) at 718F–719 A.
5 S v Shackell 2001 (2) SACR 185 (SCA) para [30] 194g – i.

(a) It clearly erred in finding that Rose Nkosi’s evidence was corroborated by
that of Doreen Vilakazi. Doreen was not a witness to the events about
which Rose Nkosi testified. She therefore could not corroborate Rose’s
evidence.
(b) It clearly erred in finding that there was not a single improbability in Rose’s
evidence:
(i) It is highly improbable that the appellant, who had a good
friendship with Rose, and, up to this time had shown no hostility to
Rose, would suddenly, without provocation – or any reason at all –
decide to attack her.
(ii) It is highly improbable that the appellant who did not know the
deceased and had not been provoked by the deceased would
suddenly decide to stab him – obviously with the intention of killing
him;

(iii) It is highly improbable that if the appellant had just fatally stabbed
the deceased the appellant and the deceased would have
continued to wrestle with each other;
(iv) It is highly improbable that if Rose had such a restricted view of the
appellant and the deceased she would have been able to identify
the knife used by the appellant as an Okapi;
(v) It is highly improbable that Rose would have been able to identify
the knife as an Okapi if she had not had it in her possession;
(vi) It is highly improbable that if the appellant had decided to kill the
deceased by stabbing him that the appellant would have inflicted
only one stab wound;
(vii) It is highly improbable that the appellant would have stabbed the
windscreen of the deceased’s car.
(c) It erred in finding that Rose’s evidence was clear, logical and
straightforward. Apart from Rose’s ability to identify the knife as an
Okapi, Rose contradicted herself about where the appellant got the
knife. At first she testified unambiguously that she did not know. In cross-
examination she testified, equally unambiguously, that she saw the

appellant drawing the knife from his right hand side before he stabbed
the deceased.
(d) It erred in finding that not one word of the appellant’s evidence was
credible and could be believed. Most of the State’s evidence about the
attack on Doreen Vilakazi was not in dispute. The appellant admitted all
the essential facts: i.e. that he had gone to visit Doreen at about 18:00 on
the night in question; that he had seen Nico at the gate to Doreen’s
house; that he had chased Nico down to the river; that he had returned to
the house and had an altercation with Doreen; that he was angry
(because he had wrongly assumed that Nico was paying court to Doreen)
and had struck Doreen; that he had chased Doreen when she ran to
Rose’s house; that when Doreen got to Rose’s house and closed the door
he had kicked the door; that when Rose’s mother asked him to leave he
had done so without protest; that he had kicked his child when he set off
in pursuit of Rose and that he had slept at his aunt’s house. The court
obviously accepted that the appellant had slapped Doreen and not
punched her repeatedly, as she testified, and found the appellant guilty of
common assault. The court clearly accepted the appellant’s evidence on
this issue and contradicted itself about his credibility.
(e) It erred in finding that the appellant’s aggression runs like a thread through
the evidence. After the events involving Doreen the essential facts are all
disputed, particularly that the appellant was the aggressor.
(f) It erred in first accepting Rose’s evidence and then finding that the
appellant’s evidence could not be believed because of certain
improbabilities, without assessing it in the light of all the evidence as a
whole.
(g) Finally, and most importantly, it erred in failing to find pertinently that
because of the improbabilities in the appellant’s version it was so
improbable that it cannot be reasonably possibly true.6

6 S v Shackell 2001 (2) SARC 185 (SCA) para 30.

[11] Although the appellant’s version was also improbable the following factors are
consistent with the appellant’s version:
(1)
The fact that the two men wrestled with each other is consistent with
them fighting for possession of the knife;
(2)
The fact that neither the appellant nor Rose could explain how Rose
was injured shows that there was great confusion – once again
consistent with the two men fighting for possession of the knife;
(3)
The fact that Rose could identify the knife as an Okapi shows that she
had possession of the knife – consistent with the appellant’s evidence
that she threw the knife to the deceased;
(4)
The fact that there is no evidence to show that it was not possible for
the deceased to have been stabbed in the chest while the two men
were fighting for possession of the knife. This was a crucial factor which
had to be investigated and a pertinent finding made before the
appellant’s evidence could be rejected as not reasonably possibly true.

[12]  In view of these factors the court’s rejection of the appellant’s version cannot
be supported and it cannot be found that his version was not reasonably possibly
true. On the appellant’s version he was attempting to keep the deceased from
obtaining possession of the knife and stabbing him and he, the appellant, had no
intention of stabbing the deceased. He was therefore not guilty of murder or any
other offence.

[13] It is significant that the tale appears to have grown in the telling. Rose added
detail as she testified (for example where the appellant got the knife from) and some
of her evidence makes no sense at all. The presence of the two ‘boys’ and the
appellant stabbing the windscreen of the vehicle was never explained. Doreen’s
evidence about the appellant assaulting the child is clearly an embellishment. If she
had witnessed this serious assault on her child she would have told the police and
the appellant would have been prosecuted for that assault as well.

[14] In the premises the appeal is upheld and the order of the court below is set
aside and replaced with the following:

‘The appeal is upheld and the conviction and sentences are set aside.’

________________________

B R SOUTHWOOD

ACTING JUDGE OF APPEAL

APPEARANCES:
FOR APPELLANTS:
V Z Nel
Instructed by:

Justice Centre, Nelspruit;

Justice Centre, Bloemfontein.

FOR RESPONDENTS:
L Pienaar
Instructed by:

Director of Public Prosecutions, Pretoria;

Director of Public Prosecutions, Bloemfontein.
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 May 2012
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

JABULANI KENNY SITHOLE v THE STATE

The Supreme Court of Appeal today upheld the appeal of Jabulani Kenny Sithole against his
convictions of assault with intent to do grievous bodily harm and murder in the Nelspruit
regional court on 21 September 2005. The appellant appealed unsuccessfully to the Pretoria
High Court which granted leave to appeal to this court. The Supreme Court of Appeal found
that on a consideration of all the evidence (as a court is obliged to do) the appellant’s version
was reasonably possibly true and that he was not guilty of the offences charged or any other
offence on the facts in question.