IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE:  YES / NO.
(2) OF INTEREST TO OTHER JUDGES:  YES / NO.
(3) REVISED.

DATE        2/12/2021                           SIGNATURE	
Case Number:  A660/2017 
In the matter between:
                                               				
MOLEBOGENG RUEL THEKO                                                  Appellant
and
THE STATE                                                                            Respondent        

JUDGMENT

POTTERILL J

[1]	The appellant was charged and found guilty of one count of kidnapping and one count of murder, read with section 51(1) of Act 105 of 1997 (the Act).  The appellant was sentenced to three years’ imprisonment for the kidnapping and 13 years’ imprisonment for the murder with it ordered that two years of the kidnapping was to run concurrent with the 13 years’ imprisonment.  This appeal is before us pursuant to the application for leave to appeal being dismissed, but leave granted to appeal on petition.

[2]	Ms. Hlatswayo, the girlfriend of the deceased, Emmanuel Maphosa, testified that the last time she saw the deceased alive was on 27 May 2015 in the late afternoon.  It is common cause that the appellant and at the very least, 3 young men (‘boys’), although she and her witness testified that it was ‘six boys’ knocked on the door where they stayed and wanted to talk to the deceased.  The deceased came out of the bedroom and went outside.  She stood at the door and saw how the men and the appellant were assaulting the deceased.  She could hear that they wanted car keys.  The appellant was punching the deceased’s face and kicking the deceased.  The boys were hitting him and one had a panga. She saw the panga being used in the assault of the deceased.  She asked the appellant why are they embarrassing the deceased, if he had taken car keys, report it at the police, but he said the police would not help him, he had to solve this himself.  The deceased was bleeding from his nose and his T-shirt had blood on it.  She witnessed how they dragged him by his belt to the Quantum vehicle in which they had arrived.  They forced him into a partition where one puts groceries, just behind the driver’s seat.  She could see that the assault continued in the Quantum.

[3]	While they were driving off she called the deceased on his cell phone, but he did not answer.  About 10 minutes later she called the deceased and he said he had dropped the deceased off at Las Vegas.  She thought that since Las Vegas is not far from his parental home he would go there.  The next morning, she went to the deceased’s parental home, but the deceased was not there.  She then went to the police to report the matter.  She was informed by the police on 31 May 2015 that they had found the deceased’s body.

[4]	Mr. Mchunu was on his way to buy cigarettes when he saw the deceased with the men and the appellant.  The appellant and the men were holding the deceased by his belt walking him to the Quantum vehicle.  The appellant and the men were assaulting the deceased badly.  He confirmed that one of the men had a panga and took note of it several times, but he did not see the panga being used in the assault.  He wrote down the Quantum’s registration number and phoned Ms. Hlatswayo to tell her what he saw.

[5]	Mr. Lubisi testified that he was driving the Quantum on 28 May 2015 for his part-time employer, the appellant.  He was called by the appellant to take the Quantum and use it because the appellant was going to Durban.  The police, to his surprise, confiscated the Quantum while he was driving it. He called the appellant to inform him hereof. 

[6]	Captain Van den Berg was called in to assist Sergeant Skosana for a voluntary pointing-out by the appellant.  The appellant was informed of his rights and they then proceeded to the place where he averred he dropped the deceased off.  He took them to a mealie field near Sundra.  There was no sign of the deceased or that people had walked into the ploughed fields.  Upon enquiries at a nearby farm they were informed that a body was found on another farm.  They proceeded to that farm where they found blood. They proceeded to the morgue and thereafter the appellant became emotional and said that he did not want the deceased to die.  Captain Van den Bergh was never told by the appellant that they went to a house to fetch money for the deceased that he owed, if he was told he would have followed it up.

[7]	Sergeant Skosana confirmed the evidence of Captain Van den Bergh pertaining to the pointing-out.  He confirmed that the deceased’s body was found in a ditch with a pipe over it and blood was found on the scene and on the pipe.  He testified that his statement was correct that the appellant when he was emotional said:  ‘it was not my intention to kill him’.  He was the police officer that arrested the appellant and the second investigating officer.

[8]	The appellant testified that three boys, who he called the Nyaope Boys from the Mandela Section, told him that they paid money to the deceased as a deposit for a trip, but the deceased never gave them a trip.  Therefore, he took the men to the deceased’s house.  There was no assault and the deceased willingly steered them away from the house to the Quantum vehicle to his cousin’s house in Delmas where he would borrow money to pay back the R3000.00 for the trip he never made.  They stopped at a ploughed land with a thoroughfare to a house.  He waited there for an hour.  One of the men, Thulani stayed behind with him in the vehicle.  Thulani after an hour went to fetch the deceased and other men.  The deceased told them the people had no money and then Thulani slapped the deceased with an open hand and the deceased bled from his nose.  They then proceeded to Etwatwa where the deceased wanted to go and look for money and Etwatwa was on his way to Daveyton.  Along the way he saw a taxi driver with the name of Jabu.  He stopped and offered him a lift to a tuckshop where Jabu intended going.  Jabu however then abandoned going to the tuckshop and drove with him to Daveyton.  He had in the meantime dropped the deceased off at Las Vegas.

[9]	The appellant persisted that he gave the address of Thulani to the police.  He also persisted that he gave the Quantum to Mr. Lubisi, because he had to go to Durban.  He however unconvincingly explained that it was not to Durban in Kwa-Zulu Natal, but a tavern called Durban.  When confronted with the evidence that the police searched for such tavern and nobody knew of such a tavern, he insisted that it existed.  Sergeant Kgwethe testified that when he called the appellant, the appellant told him he could come to see him on Monday because he was far away.

[10]	The appellant called Mr. Nonyane as a witness.  This is Jabu that the appellant picked up next to the road on the way to Daveyton.  He testified the deceased was in the vehicle and nothing looked untoward.  The deceased was dropped off at Las Vegas.  He however, never bought the air-time he was planning to buy at Las Vegas, a shopping mall.

[11]	The body of the deceased was found in a storm water drain.  The deceased had multiple wounds and there was blood on the scene and on the deceased’s T-shirt.  The post mortem report stated that the date of death was 31 May 2015 and (as informed) that there was no decomposition of the body and rigor mortis was observed.  The post mortem report was admitted in terms of section 220 of the Criminal Procedure Act, Act 105 of 1977.

	Kidnapping
[12]	Tragically, the deceased left his home on 27 May 20215 and he never came back.  The question is whether he willingly left his safe abode.  The appellant urged the court to believe he did it willingly to avoid Ms. Hlatswayo from finding out that he owed money and to borrow the owed money from a cousin.  The court a quo correctly found that an assault on the accused took place in getting him to enter the Quantum.  Both Ms. Hlatswayo and Mr. Mchunu testified that the deceased was held by his belt and assaulted while being forced and placed in the taxi where groceries normally go.  Both testify that one of the men had a panga.  Whether the panga was used or not, it displayed serious intent as a show of force carrying a panga to a person’s house with whom you have a gripe.  Ms. Hlatswayo and Mr. Mchunu saw the appellant assaulting the deceased.  Steering somebody by a belt and assaulting that person while forcing that person into a vehicle is consistent with the inference that the deceased did not leave his home willingly and was kidnapped.

[13]	The criticism of the evidence of Ms. Hlatswayo and Mr. Mchunu was correctly rejected by the Court a quo.  There were contradictions in her evidence as to whether the sharp side of the panga was used or not; in metres how far the assault started from where she was standing; whether the assault started in or outside the yard and whether she called the accused 10 or 20 minutes after they left her premises.  None of these contradictions, or all of them in totality, renders the evidence of Ms. Hlatswayo as unreliable or uncreditworthy.  Estimating time and distance is at best tricky; but doing so in a fluid scene and when confronted with your loved one being forced into a vehicle while being assaulted, differences in metres and minutes were not material.

[14]	There was a contradiction between her and Mr. Mchunu as to whether the panga was used in the assault or not.  There was also a contradiction pertaining to whether there was blood on his T-shirt or not.  Once again these contradictions are not material and did not render their versions unreliable.  Pertaining to the kidnapping the magistrate was acutely aware of and considered these discrepancies in the evidence fully and carefully.  The trial court followed the approach in S v Sauls 1981 (3) SA 172 (A) and found that despite these contradictions the truth about the kidnapping had been told.  In my view the reasoning of the trial court is unassailable.  I am satisfied, having regard to the evidence as a whole, that the discrepancies were not sufficiently material to warrant a rejection of the version proffered on behalf of the state.

	Murder
[15]	In criminal proceedings the state bears the onus to prove the accused’s guilt beyond a reasonable doubt.  The accused’s version cannot be rejected only on the basis that it is improbable, but only once the trial court has found, on credible evidence, that the explanation is false beyond a reasonable doubt.  Equally trite is that the appellant’s conviction can only be sustained if, after consideration of all the evidence, his version of events is found to be false.

[16]	In S v T 2005 (2) SACR 318 (E) at par 37 Plasket J confirmed the above principle as follows:

‘The State is required, when it tries a person for allegedly committing an offence, to prove the guilty of the accused beyond a reasonable doubt.  This high standard of proof – universally required in civilised systems of criminal justice – is a core component of the financial right that every person enjoys under the Constitution, and under the common law prior to 1994, to a fair trial.

It is not part of a charter for criminal and neither is it a mere technicality.  When a court finds that the guilt of an accused has not been proven beyond reasonable doubt, that accused is entitled to an acquittal, even if there may be suspicions that he or she was, indeed, the perpetrator of the crime in question.’
 
[17]	The appellant herein is suspiciously the perpetrator of the crime with multiple facts leading to such conclusion.  He was one of the men forcing the appellant into his Quantum. Blood of the deceased was found in the Quantum. He was the last person to see the appellant alive.  Why would he point-out where he dropped the deceased, at a mealie land, not at Las Vegas as he told Ms. Hlatswayo, and Sergeant Skosana? Interestingly this mealie field is close to where the body was in fact found.  Why would he wait for an hour next to the road in a taxi for the deceased to return from allegedly borrowing money from his cousin?  Especially so, when Ms. Hlatswayo testified that no cousin lived in that region.  He was not owed the money; it is highly suspicious that he would sit next to the road for an hour to assist a gang of unemployed men with a known criminal element to get their money back.  Why would he ‘disappear’ to Durban when the police were looking for him?  His own defence witness testified that he said he was in Durban.  When confronted with this he then tried to explain that he was at a tavern called Durban, detaining him to such an extent that he could not go to see the police. 

[18]	But, having raised all these improbabilities, the State had not proved that the appellant killed the deceased as the only reasonable inference.  The post mortem report concluded that the deceased died, as reported, on 31 May 2015.  That is four days after the appellant had kidnapped the deceased.  The post mortem report further stated that rigor mortis was present supporting the finding of the date of death as 31 May 2015.  There was also no decomposition of the body further supporting the conclusion of the date of death as 31 May 2021.  These facts do not exclude other reasonable inferences, that he was held and killed later by the other men, or even somebody else.

[19]	The appeal against the conviction of murder must thus be upheld.  The state did not prove that the appellant caused the deceased’s death.

	Sentence
[20]	The three years’ imprisonment for kidnapping is not harsh, in fact, it is a light sentence, probably because the kidnapping and murder was close in time and purpose.  This Court must not interfere with the sentence.

[21]	I accordingly make the following order:

	21.1	The appeal is upheld pertaining to the murder conviction.
	21.2	The appeal against the kidnapping conviction is dismissed.
	21.3	The sentence for the murder is set aside.
	21.4	The sentence of three years for the kidnapping is confirmed.

__________________
S. POTTERILL
JUDGE OF THE HIGH COURT

I agree

__________________
M.P. MOTHA
ACTING JUDGE OF THE HIGH COURT

CASE NUMBER:  A660/2017

HEARD ON:  23 November 2021

FOR THE APPELLANT:  ADV. H. ALBERTS
INSTRUCTED BY:  Legal Aid South Africa

FOR THE RESPONDENT:  ADV. S. SCHEEPERS
INSTRUCTED BY:  Director of Public Prosecutions

DATE OF JUDGMENT:   2 December 2021