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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No:  459/15

In the matter between:

AVHAPFANI DANIEL KHAVHADI

FIRST APPELLANT

RUDZANI ELISAH SIGOVHO

SECOND APPELLANT

MASHUDU JOYCE MUDAU

THIRD
APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Khavhadi v S (459/15) [2015] ZASCA 191 (30 November 2015)

Coram:

Navsa, Lewis, Pillay, Mbha and Zondi JJA

Heard:

20 November 2015

Delivered:

30 November 2015

Summary:
Criminal law – evidence of death of deceased lacking – single
witness not credible and satisfactory – conviction overturned.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from Limpopo Local Division of the High Court, Thohoyandou (Makgoba
AJ sitting as court of first instance):

The appeal is upheld and the appellants’ convictions and related sentences are set aside.

JUDGMENT

Zondi JA (Navsa, Lewis, Pillay and Mbha JJA concurring):

[1] The three appellants were convicted in the Limpopo Local Division of the High
Court, Thohoyandou (Makgoba AJ) of the murder of four-year old Tshilelo Sigovho
(Tshilelo). They were each sentenced to a period of life imprisonment. They appeal
against their convictions. The first and third appellants were granted leave to appeal by
this court. The second appellant was granted leave to appeal by the court below.
Tshilelo is the daughter of the second appellant, Rudzani Elisah Sigovho (Rudzani).

[2] In a nutshell, the State’s case, in the court below, was that after Tshilelo had been
left in the care of a friend and neighbour, namely, the principal witness on behalf of the
State, Ms Azwinndini Alice Maphosa (Maphosa), Rudzani arrived during the night of 14
September 1999 together with the other two appellants and took her daughter away in
order to present her as a sacrifice in a ritual murder to appease the gods Rudzani
believed in. It was alleged that Tshilelo had to be killed in order to harvest her body-

parts for presentation to the gods as part of the appeasement process. It is common
cause that Rudzani was in training to become a traditional healer. It is also undisputed
that the third appellant was a traditional healer and was training the second appellant to
be one as well.

[3] Rudzani and the other appellants were charged with the murder of Tshilelo after
the latter’s disappearance and after the release of two other suspects, which included
Maphosa. The deduction that the appellants had conspired to kill Tshilelo in order to
harvest her body-parts to appease the gods was based on Maphosa’s assertion that the
first appellant, Avhapfani Daniel Khavhadi (Khavadi), who is also her common-law
husband, had told her, on the night prior to Tshilelo being spirited away, that Rudzani’s
gods required human body-parts in order to be appeased.

[4] There was no witness to the murder that had allegedly been committed by the
three appellants. Approximately a week after Tshilelo’s disappearance, skeletal remains
were found in the vicinity of where she and her mother resided. At the commencement
of proceedings in the court below a post-mortem report was admitted by consent of the
appellants. They also appear to have admitted that the skeletal remains were that of
Tshilelo. It is necessary to record that all that was found was a skull and six ribs.

[5] The doctor who completed the post-mortem report, recorded that the child had
been found on 14 September 1999. That date is at odds with the evidence of a
policeman tendered in support of the State’s case that he had been to the place where
the remains had been found on 22 September 1999. From the photographs of the skeletal
remains it appears, at least superficially, that the body had been in a prolonged and
advanced stage of decomposition. The post-mortem report records that the sex of the
person whose remains were found was undetermined but that it was ‘probably male’.
This conclusion was based on the doctor’s observations of the clothing that had been
found with the skeletal remains. The time of death was estimated by the doctor to be

‘four weeks or longer’ prior to the date on which the post-mortem examination was
conducted. From the skeletal remains it was deduced that it was the remains of a child
who had been between four and seven-years old. The cause of death was
‘undetermined’. DNA testing, which would have been conclusive as to the sex of the
child, was not conducted.

[6] In light of the very unsatisfactory conclusions recorded in the post-mortem report,
the admission about the identity of the deceased person whose skeletal remains were
found is difficult to comprehend.

[7] The very first problem for the State is that in order to sustain a conviction for
murder it had to prove that the person the appellants are accused of having murdered
had in fact been killed. Even in the face of the apparently uninformed admissions made
by the appellants there must be grave doubt about whether the death of Tshilelo had
been proved. Put differently, there has to be substantial doubt about whether the skeletal
remains were those of Tshilelo. An essential element of the crime of murder would thus
not have been proved.1

[8] Even if the State were somehow to overcome the very fundamental hurdle
referred to in the preceding paragraph, the further difficulty it faces is that the evidence
of Maphosa, who was the only person who implicated the three appellants, was wholly
unreliable.

[9] It is common cause that at a stage when the community was first made aware of
Tshilelo’s disappearance and when Rudzani, at least superficially, appeared frantic and
sought the assistance of a traditional healer and arranged for community leaders to
conduct a search of the area, Maphosa went along with her and supported those efforts.
It was only when community suspicion fell on Maphosa that she publicly accused

Rudzani of being involved in Tshilelo’s disappearance. Her evidence in this regard is
noteworthy:
‘As people had gathered at my kraal I realised that there was a number of school children and anything
can happen. It is then that I told this group of people that people are just wasting time by searching my
kraal because the child was taken from my kraal by accused 1 and 2.’
It is clear from this testimony that fear for her own safety prompted the accusations she
levelled at two of the appellants. At that stage there was no mention of the third
appellant. It must also be borne in mind that she was among the first suspects to be
arrested and must have been keen to avoid being prosecuted.

[10] Furthermore, a person who was also taken into custody at about the same time
that Maphosa was arrested as a suspect, Mr Sonnyboy Netshitungulu, testified that he
had seen Tshilelo crying on the night on which she was allegedly spirited away by the
three appellants, saying that she was on her way to Maphosa’s house and that he then
saw her make her way in that direction. Netshitungulu testified in support of the State’s
case. However, his testimony, far from incriminating the appellants, casts a shadow of
suspicion on Maphosa.

[11] The court below, even though reminding itself that it was dealing with the
evidence of a single witness in the form of Maphosa and that it should be cautious in its
approach, did not consider the negative aspects referred to in the preceding two
paragraphs. There is no formula to apply when it comes to the consideration of the
credibility of a single witness. It is, however, a well-established judicial practice that the
evidence of a single witness should be approached with caution, and his or her merits
and demerits as a witness should be weighed against factors which militate against his

1 See C R Snyman Criminal Law, 5 ed (2008) at 447 et seq.

or her credibility.2

[12] The court below erred in unreservedly accepting the evidence of Maphosa. She
was far from a satisfactory witness. It is clear that the State failed to prove the
appellants’ guilt beyond a reasonable doubt.  For the reasons set out above the
convictions and sentences are liable to be set aside.

[13] The appeal is upheld and the appellants’ convictions and related sentences are set
aside.

_________________

D H Zondi

Judge of Appeal

2 See E Du Toit et al Commentary on the Criminal Procedure Act, Service Issue 54 January 2015, at 24-1 to 24-2C
where the learned authors comment on section 208 of the Criminal Procedure Act 51 of 1977 which provides that a
conviction may follow on the evidence of a single witness and see the authorities there cited.

Appearances
For the Appellant:
A L Thomu (Attorney)

Instructed by:

Thohoyandou Justice Centre, Thohoyandou

c/o Bloemfontein Justice Centre , Bloemfontein

For the Respondent:
R J Makhera

Instructed by:

Director of Public Prosecutions, Thohoyandou

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 November 2015
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.

Khavhadi & others v The State (459/15) [2015] ZASCA 191 (30 November 2015)

Today the Supreme Court of Appeal (SCA) upheld an appeal from the Limpopo Local Division of the High
Court, Thohoyandou and set aside the convictions and sentences of life imprisonment imposed on each of the
three appellants.

The issue before the SCA was whether the evidence on which the appellants were convicted was sufficient.

The appellants were charged with murder of a four year old child who disappeared on 14 September 1999. The
State’s case was that after the child had been left in the care of her mother’s friend and neighbour, the main
State witness, Ms Alice Maphosa, the second appellant arrived during the night of 14 September 1999, together
with the other two appellants and took her away in order to present her as a sacrifice in a ritual murder to
appease the gods the second appellant believed in. It was alleged that the child had to be killed in order to
harvest her body parts for presentation to the gods as part of the appeasement process. The second appellant was
in training to become a traditional healer and the third appellant was a traditional healer and was training the
second appellant to be one as well.

The post-mortem examination conducted on the skeletal remains – consisting of a skull and six ribs - which
were found in the vicinity of where the child and the second appellant resided could not establish the cause of
death and the sex of the victim. No DNA testing was conducted. There was a substantial doubt about whether
the skeletal remains were those of the child. An essential element of the crime of murder was thus not proved.

Maphosa who mentioned the appellants and suspects was wholly unreliable. The fear for her own safety
prompted the accusations she levelled at the two of the appellants.

The SCA held that the court below erred in unreservedly accepting the evidence of Maphosa. She was far from a
satisfactory witness. The SCA concluded that the guilt of the appellants had not been proved beyond reasonable
doubt and for that reason upheld the appeal.