THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case no: 408/04
REPORTABLE

In the matter between:

Kagiso Howard MALEKA

Appellant

and

The STATE

Respondent

Before:
Cameron, Conradie and Heher JJA
Appeal:

Tuesday 17 May 2005
Judgment:
Friday 20 May 2005

Criminal law – Evidence – Admissions – Question raised whether
admission may be taken to have been impliedly made

JUDGMENT
_____________________________________________________

CAMERON JA:

[1] The appellant was convicted in the Bafokeng regional court at
Tlhabane of murdering Zwelinzima Ivan Mtshatsheni.  The

regional magistrate, Mr Motsomane, applying the minimum
sentencing
legislation,
1  sentenced
him
to
years’
imprisonment.  On appeal the high court at Mmabatho set
aside the murder conviction and substituted a conviction of
culpable homicide (plus six years’ imprisonment).  Hendler J
(Landman AJ concurring) refused leave to appeal against this
outcome, but this court later granted the necessary leave.
[2] The main point taken before this court is that the state failed to
prove that the appellant caused the injuries the deceased
sustained.  In conjunction with this, the appellant contends that
the state failed to negative his defence that he acted lawfully in
killing the deceased, since it failed to prove that he exceeded
the bounds of self-defence.  To appreciate these submissions
an account of the facts and the conduct of the trial is
necessary.
[3] The charge arose from an incident on 5 October 2001 at
Meriting (a Rustenburg township) near the home of the
deceased’s friend, Ms Lovely Sebotse.  It was common cause
that an altercation occurred when his wife arrived at Ms
Sebotse’s home, where the deceased was over-nighting.  (The

1 Criminal Law Amendment Act 105 of 1997 s 51.

appellant had driven the deceased’s wife to the scene in his
van but was prudently keeping a low profile down the block.)
When the deceased’s wife left, the deceased set out after her.
Sebotse and her friend Ms Hellen Isabella Molwana followed.
Finding the appellant’s motor van in the street nearby, the three
waited until the appellant arrived.  Some words were
exchanged, but at this critical point Sebotse and Molwana felt
impelled to return home to secure the children in the unlocked
house.
[4] Sebotse and Molwana, the sole witnesses for the state, related
that on returning to the scene they heard ‘a big sound’, and
observed the deceased retreating backwards.  He lifted his
hands and fell, after which the appellant bent over him.  Neither
saw what occurred between the two.  Neither saw the appellant
assault the deceased.
[5] The appellant was legally represented during his trial.  He
pleaded not guilty, offering no explanation in expansion of his
plea.  At the close of the state case the magistrate refused an
application for his discharge.   He then took the witness stand.
The deceased, he said, followed him after the women left,
pelting him with stones.  He ran away but tripped and fell in an

empty adjacent plot.  He then threw a stone at the deceased –
‘a very small stone’, barely half the size of his hand.  He did so,
he said, ‘in spread of desperation because [the deceased] was
chasing me hell and back, and after I threw, I guess there I got
desperate and threw the stone at him because he was closing
[the] gap’.
[6] None of the deceased’s stones hit him.  After throwing his
stone, he said, he looked back and realised the deceased was
no longer following him.  He went back to the road and found
the deceased lying on the ground.  He was ‘like groaning and
all those things’.  He admitted his stone must have struck the
deceased.  The deceased at this stage ‘looked lameness and I
thought he must have been badly injured’.  He tried to lift him
up, he claimed, to take him for medical attention.  (Molwana
stated that she ‘saw accused lifting deceased’s legs and pulling
him towards the bakkie’, but that he left when bystanders
converged.)  He could not tell whether the deceased was still
alive at that stage.
[7] The deceased had in fact been severely injured.  He appears
to have died at the scene.  The post-mortem examination was
eight days later.  It found that the cause of death was ‘head

and abdominal injuries due to blunt trauma’.  The injuries
recorded were extensive:  an abrasive bruise of the right
forehead; abrasions of the left forehead, right and left elbows
and right knee; bruise of the right thigh; peri-orbital haematoma
with conjunctival haemorrhage [black eye] on the left side.  In
addition, the post-mortem found deep scalp bruising, skull
fractures including the base of the skull, acute subdural
haemorrhage, frontal lobe contusions, brain swelling and
herniations, with evidence of raised intra-cranial pressure.  The
skull fracture was described in more detail: ‘A linear fissured
fracture of the occipital bone in the midline 75mm long, and a
comminuted [splintered] fracture of the base of skull.’  There
was acute bilateral subdural haemorrhage.  The spleen had
been lacerated, and blood had been aspirated.
[8] The magistrate taxed the appellant at the end of his evidence
with these injuries.  He was unable to account for them.
Instead, he offered the lame suggestion that ‘the place in which
[the deceased] fell was full of stones’.  At this the magistrate
inquired: ‘So in other words you suggest that these injuries
might have been caused by his falling?’.  The appellant replied:
‘They might have been aggravated by his falling.’  (In argument

at the end of the trial, his attorney urged that some of the
injuries could also have been caused when the appellant, as
observed by Molwana, tried to drag the deceased to his
bakkie.)
[9] The significance of this interchange is that the appellant at no
stage suggested that anyone other than he had been or could
have been responsible for the deceased’s injuries.  His entire
account of the incident with the deceased involved only two
persons: himself and the deceased.  There was no suggestion
of a further intervening party or of any supervening cause.
[10] It is against this background that the main point now taken
on the appellant’s behalf must be considered.  At the outset of
the trial, the appellant admitted the ‘results’ of the post-mortem.
His attorney emphasised that he admitted ‘the correctness of
the post-mortem itself’.  At that stage, the appellant’s version of
self-defence had not yet been disclosed.  But it was clear that
the manner of the deceased’s death, the cause of death, and
the nature of the injuries he had suffered, were not in issue.
[11] The point the appellant now takes arises from the fact that at
the outset of a prosecution involving an unlawful killing the
admissions made usually include the identity of the deceased;

the accuracy of the post-mortem report; and, in addition, that
the deceased’s body suffered no further injuries between his
death and the performance upon it of the post-mortem.  These
admissions are almost invariably made together.  Otherwise
the doctor who performed the post-mortem (if not already
scheduled to testify) can be called to clarify matters or to
resolve any dispute.
[12] In this case, the admission concerning absence of further
injuries was not made.  This appears to have been an
oversight, due to inexperience or inadvertence on the part
equally of magistrate, defending attorney and prosecuting
counsel.  At no stage during the trial was it suggested that the
deceased’s body had in fact later suffered further injuries.
[13] The point is clearly an after-thought, arising from the gap
opened by the omission of the usual admission; and is in this
sense opportunistic.  If however it reveals a hole beneath the
water-line of the state’s case, the conviction of unlawful killing
cannot stand; and the point must for this reason be carefully
considered.
[14] Counsel for the appellant emphasised that no evidence was
tendered as to what became of the deceased after he fell

down, when and how he was removed from the scene, where
his body was kept until the post-mortem, or to show that the
body suffered no further injuries between the incident with the
appellant and the post-mortem.  He therefore contended that in
the absence of medical evidence on these aspects no
satisfactory finding could be made as to how the deceased
suffered his injuries.
[15] Counsel’s premise is correct, but the conclusion he seeks to
extract is mistaken.  It is true that medical evidence was
lacking.  And it would undoubtedly have been preferable to call
the doctor who performed the post-mortem to testify.  But a
criminal trial, famously, is not a game.  The sole question in
dispute at the appellant’s trial was whether he intended to kill
the deceased.  The concluding addresses of the prosecutor
and the appellant’s attorney, which (mistakenly) were
transcribed and included in the appeal record, reveal that this
was the only point argued.  And it was solely in relation to the
question of intention that the way in which the deceased
sustained his injuries was debated.
[16] Had the point now taken been raised at the trial, the
magistrate may well have been duty-bound in the interests of

justice to call the doctor who performed the post-mortem and
those responsible for ensuring the integrity of the corpse
between the scene of the incident and the mortuary (R v
Hepworth 1928 AD 265 277).  The taking of such a point after
the trial may in appropriate circumstances raise the question
whether an admission such as that at issue now – concerning
the integrity of the body between death and post-mortem – may
not be taken to have been made impliedly.2
[17] It is not however necessary to canvass this question now.
This is because the evidence the state presented, together with
the admissions the appellant expressly made, established
beyond reasonable doubt that the injuries in question were
inflicted at the scene and not later.  There are two steps to this
conclusion.
[18] First, the appellant, as pointed out earlier, admitted the
‘contents’ and ‘results’ of the post-mortem report.  That report
found that the cause of death was ‘head and abdominal injuries
due to blunt trauma’.  This can only mean that the injuries listed
in the report were those that caused the death.  They could

2 Compare S v Mathlare 2000 (2) SA 515 (SCA) para 9, where cross-examination was held to
have yielded a ‘clear implied informal admission’ of a fact crucial to the state’s case; and see
also S v Boesak 2000 (3) SA 381, 2000 (1) SACR 633 paras 50-55; S v Boesak 2001 (1) SA
912 (CC) paras 26-29.

thus not have been inflicted afterwards.  The appellant’s
admission therefore necessarily entails that the injuries were
inflicted before his death.
[19] Second, the evidence established that the deceased died at
the scene.  Counsel for the appellant sought to suggest that the
deceased may not have died there, and thus that the fatal
injuries may have been inflicted later.  But this is at odds with
the uncontested evidence.  Sebotse confirmed in her evidence
in chief that the deceased died at the scene.  It is true, as
counsel pointed out, that she also stated that she ‘had no
courage to look at the deceased’.  But this was in answer to a
question whether she noticed injuries on his person.  There is a
great difference between being able confirm from first-hand
knowledge that someone has died, and being willing to
examine the corpse to establish the extent of the corporeal
damage.  Sebotse did the former.  She was unwilling to do the
latter.  Her statement that the deceased had died at the scene
was unchallenged in cross-examination, and must be taken to
have been established.

[20] It follows that the state proved beyond reasonable doubt that
the injuries the deceased suffered, and which resulted in his
death, were inflicted at the scene.
[21] It also follows from what has been set out above that it was
proved beyond reasonable doubt that it was the appellant, and
the appellant alone, who inflicted those injuries.  His counsel
accepted in arguing the appeal that, if his main point found no
favour, it would not be possible to maintain that there was
doubt about the unreasonable excess of force involved in the
killing.
[22] And indeed this is so.  The injuries the deceased suffered
were manifold, various and terrible.  It is quite clear that the
appellant’s version as to their infliction was spurious, and that
the only reasonable inference, consistent with all the proven
facts, is that something occurred at the scene, after the
departure of Sebotse and Molwana, that led him to a fatal
attack on the deceased.  This while he escaped quite
untouched.  The possibility that this could have occurred within
the norms of reasonable conduct, or that the appellant thought
or could reasonably have apprehended that his conduct was
lawful, is so remote that it may safely be excluded.  Indeed, the

inference that the injuries may have been intentionally inflicted
looms so large that the appellant may consider himself lucky to
have escaped the murder conviction.
[23] There is little to say about sentence, and counsel did not
attempt to say more.
[24] The appeal against both conviction and sentence is
dismissed.

E CAMERON

JUDGE OF APPEAL

CONCUR:
CONRADIE JA
HEHER JA