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Maqubela v S (821/2015) [2017] ZASCA 137

29th September 2017

The SCA today upheld an appeal against the appellant’s conviction of murder and subsequent sentence of 15 years’ imprisonment, for the murder of her husband.

It was held that when the medical evidence of Prof Saayman, a specialist pathologist, as to the cause of death of the deceased was properly assessed in accordance with the appropriate judicial measure of proof, being the assessment of probability, and not in accordance with the scientific measure of proof being the ascertainment of scientific certainty, the correct conclusion was that the deceased probably died of natural causes.

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This conclusion was based upon objective medical facts, sound logical reasoning and accorded with the probabilities as revealed by the medical evidence. The trial court had accordingly erred in concluding that the medical evidence as to the cause of death of the deceased was inconclusive. In the light of the conclusion that the deceased probably died of natural causes, even if the mendacity and guilty consciousness of the appellant were taken into account, an unlawful killing was not the only reasonable inference that could be drawn. 

A finding of murder was therefore precluded. The trial court, however, impermissibly relied upon the evidence of guilty conduct on the part of the appellant, without more, to prove the guilt of the appellant. In the result, the appeal against the conviction of murder succeeded. 

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