Williams v S (KS 18/09) [2009] ZANCHC 74 (27 November 2009)

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[2009] ZANCHC 74
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Williams v S (KS 18/09) [2009] ZANCHC 74 (27 November 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
[
Northern
Cape High Court, Kimberley]
Case
no
: KS
18/09
In
the matter of
:
THE STATE
versus
TOMMY
WILLIAMS
ACCUSED
Coram:
MAJIEDT
J
assisted
by M
s
BM Pakati-Mabuza and Adv B Babuseng
JUDGMENT
MAJIEDT J:
This
is the unanimous judgment of the full Court, i.e. myself and my tw
o
assessors, Adv Babuseng and Ms Pakati-Mabuza. The accused has been
arraigned on nine counts, namely attempted rape, three counts
of
murder, one count of kidnapping, two counts of theft and two counts
of assault with the intent to inflict grievous bodily
harm.
For
the sake of brevity we
do
not intend to set out fully the details of the aforementioned
charges against the accused, since it is fully set out in the

indictment. It is, however, convenient to refer to three separate
incidents and time periods which relate to the various charges

against the accused. In the first instance we shall refer to the
events of 28 April 1987 which relate to counts 1 and 2 (attempted

rape and murder) as the “
1987-incidents
”,
with regard to counts 3, 4, and 5 (kidnapping, theft and murder) we
shall refer to these as the “
2004-incidents
”
and lastly we shall refer to the events relating to counts 6, 7, 8
and 9 (murder, theft and two counts of assault with the
intent to
inflict grievous bodily harm) as the “
2008-incidents
”.
The
trial was characterised by various delays from the start. Initially
Mr. Van Tonder, who appeared for the accused, requested
a
postponement, supported by Mr. Barnard who appeared for the State
(assisted by Mr. Mashuga) because both of them were not ready
to
proceed. As a consequence the trial started approximately one week
late. At the commencement of the hearing, Mr. Van Tonder
informed
us that he had serious problems getting any co-operation from the
accused. The accused did in fact not co-operate and
during the
first day of the hearing when the charges were put to him, he
refused to accept Mr. Van Tonder’s assistance. The
latter had
also not been able to procure any instructions from him.
Having explained very carefully the gravity of the charges and
having encouraged him repeatedly to make use of the assistance
of
Mr. Van Tonder, the accused regrettably persisted in his choice not
to accept the legal representation on offer. As a consequence
he
acted in person during the plea stage.
T
he
accused pleaded not guilty on counts 1, 2, 3, 5, 6, 7, 8 and 9 and
guilty on count 4. Having pleaded guilty on count 4, theft,
a plea
of not guilty was noted after the accused failed to admit all the
material elements of the offence. The provisions of
s51 of Act 105
of 1997 were explained to him in respect of counts 2, 5, and 6,
since the State relied on these provisions in
the indictment. The
competent verdicts on the various offences were also fully explained
to the accused. At an early stage
of the proceedings the accused
swallowed an unknown substance and he was rushed to hospital as a
consequence whereof the trial
was further delayed. This was prior
to the plea stage. Exhibit A before the Court is a note from Dr. J.
Coetzee indicating
that the accused was fit to stand trial.
Thereafter the accused pleaded as set out hereinabove. The
provisions contained in
Act 45 of 1988, relating to the exceptions
on the hearsay rule was also fully explained to the accused who was
unrepresented
at that stage. This was done, since Mr. Barnard had
foreshadowed a reliance on these provisions during the evidence
which he
intended to lead in the State’s case.
With
regard to count 4, theft, the accused had, it will be recalled,
pleaded guilty. Upon questioning in terms of s112(1)(b)
of the
Criminal Procedure Act, 51 of 1977 (hereinafter referred to as
the
Act
),
the accused admitted that he had on the date set forth in the charge
sheet entered the complainant, Mr. Bihi’s, house in
Warrenton and
that he had removed certain goods. Upon further examination, I was
not satisfied with the explanation given and
a plea of not guilty
was noted in terms of s113 of the Act. The admissions made by the
accused were however recorded as proof
and this relates to the goods
that he had taken from the house as reflected in the indictment.
With
regard to the 1987 incident, the State charged the accused with the
murder of Martha Botha, an eight year old girl
,
as well as with attempted rape. The evidence briefly for the State
was from the deceased’s mother, Mrs Maria Botha, that
the deceased
had been sent to a shop by a neighbour to buy bread and the accused
had been seen following her as she left the
house. Her daughter
never returned and when the accused passed her house later that
afternoon he informed her that he had left
the deceased at the shop
and had parted ways with her. She later received information from
one Mr. Ronnie Borothelo that he
had seen the deceased in the
company of the accused on the day of her disappearance. A few days
later the accused pointed out
the body of the deceased at a disused
stadium in Ipopeng. This stadium has since been demolished. The
State handed in as exhibit
RR a statement from Mrs Ellen Mpiwa,
confirming that the deceased had purchased bread in her shop on the
day in question. The
deceased had been alone at the time. I pause
to point out here that the accused had, at my insistence,
reconsidered his stance
about legal representation at the end of Mrs
Botha’s evidence in chief. He took up my offer of assistance by
Mr. Van Tonder
(whom I had requested to remain in attendance on a
watching brief). Mr. Van Tonder thus cross-examined Mrs. Botha,
after having
received full instructions from the accused. Mr. Van
Tonder then acted throughout the proceedings for the accused.
Further
evidence on these two counts is that of Mr. Borothelo who confirmed
that he had seen the accused and deceased walking together
on the
day in question in the direction of the Ipopeng stadium. When he
had heard that the deceased’s body had been discovered
at the
stadium, he reported to the family that he had seen the accused and
the deceased together on the day in question. The
accused who was
present at this time did not dispute this nor did he make any
comment thereon. Mrs. Botha also testified about
the discovery of
the body. It was clear that it was concealed with grass and with a
plastic bag. According to Mrs. Botha one
could not see the body
even if you passed close by it, given the fact that it was concealed
to a great extent.
The
evidence of Dr. JF Els, the district surgeon, indicates that the
cause of death was strangulation and an examination of the
genital
area of the deceased indicated that at most there could be evidence
of indecent assault or attempted rape.
Satellite
images of the area where the Ipopeng stadium would have been,
Mpiwa’s shop as well as Mr. Borothelo’s residence indicated
that
Mr. Borothelo’s residence is in the opposite direction of the
residences of the deceased and the accused. It was therefore
not
necessary for the accused and the deceased to pass Mr. Borothelo’s
residence if the deceased had gone to Mpiwa’s shop.
To get from
Mpiwa’s shop to the Ipopeng stadium however, one had to pass Mr.
Borothelo’s residence.
Mr.
April, a former policeman, was the investigating officer in the
matter
.
He testified after refreshing his memory from the investigation
diary and the docket. According to his testimony he took a

statement from the accused who he regarded as a witness at that
stage. The accused indicated that he had visited one Jack Khoi
Khoi
on the day of the deceased’s disappearance. Khoi Khoi’s
residence was in President Mangope Street. A statement by
Jack Khoi
Khoi was handed in after an application by the State as an exception
to the hearsay rule, because Mr. Khoi Khoi has
since passed away.
In that statement Mr. Khoi Khoi indicated that he was not at home on
the day of the disappearance of Martha
Botha and that the accused
could not have visited him on that day.
The accused’s witness
statement made to Mr. April indicated that he had come across the
deceased’s body by chance and that
he had then reported finding
it.
As is
the case in the other charges relating to the murders in the 2004
and 2008 incidents, the State relies exclusively on circumstantial

evidence and also on similar
fact
evidence with regard to counts 1 and 2. We will revert to this at
the end of this judgment when we discuss whether the State
has
proved its case beyond reasonable doubt. The accused formally
admitted per exhibit P the identity of the deceased,
the
correctness of the satellite image of the vicinity around Ipopeng
Stadium (exhibit B) and the correctness of the plan of
the (now
demolished) Ipopeng Stadium (exhibit C).
The
evidence on counts 3 to 5 can briefly be summarized as follows. In
these counts the accused was charged with kidnapping,
theft and
murder of Thabang Bihi, a 13-year old boy
,
at Warrenton. The evidence adduced by the State shows that on 17
April 2004 Thabang Bihi went missing from his house after
his father
had left his residence. Upon his return Mr. Bihi (snr) found that
his son was missing and also that certain items
had been taken from
his house. Evidence led by the State from Mrs. Maria Thomas (the
accused’s girlfriend at that time), Mr.
Dawid Papier (a colleague
of the accused who was engaged with the accused in guarding houses
on behalf of their employer who
in turn was engaged by Absa Bank to
look after repossessed houses) and by Ms Angelina Modise (the
girlfriend of Mr. Papier) established
that the body of an unknown
human being was found in a shallow grave in the backyard of the
house which the accused had previously
guarded and which Mr. Papier
was guarding at that time. Inspector McAnda, a member of the SAPS’s
local criminal record centre,
confirmed this gruesome find. He took
photographs of the scene and collected various exhibits.
Significantly the body was wrapped
in a multicoloured cloth, similar
to the cloth hanging in front of the windows inside the house in the
lounge and which appeared
to be part of a duvet cover. Part of this
material used as curtains had been cut off.
The
accused was arrested by Hartswater police at the instructions of
members of the SAPS in Kimberley and the accused was handed
over by
Captain Van
Staden
to Superintendent Verster and Inspector Luis thereafter. Initially
the accused attempted to deny that he was in fact Tommy
Williams,
but his identity document was found on him and it proved otherwise.
The
accused presented a version to Superintendent Verster and Inspector
Luis to the effect that he had taken certain items from
Mr. Bihi’s
house on the day in question and that a certain unknown man had
strangled the young boy inside the house which the
accused was
guarding. This man had asked the accused to assist him in holding
the boy, which the accused did. This person later
appeared to be
Mr. Ishmael Motingwe who was questioned by the police and his alibi
was found to be true after it was verified.
The
State also led the evidence of one Mr. Rudolph Fredericks who
testified that during September/October 2004, while sharing
a prison
cell with the accused, the latter upon enquiry informed Mr.
Fredericks that he was incarcerated for something he had
not done
and that he had merely found a body in the bath at his house.
The
post mortem
examination
on the body was done by Dr. Liebenberg. This was done in
Bloemfontein. The cause of death could not be determined
due to the
advanced state of decomposition of the body. She indicated however,
that strangulation could not be excluded as a
cause of death.
Certain parts of the body was not present. She drew three
conclusions from her examination:
(a) That
the body was that of a person under the age of 25 years and it is
possible that it could be
that
of a 13-year old person.
(b) That
the person is a male – this could be determined with certainty.
(c) That
the body was that of a person of mixed racial heritage, possibly the
body of a Coloured person or of a Black person with
multiple white
genes.
Dr.
Liebenberg also estimated through measurements of the femur, fibula
and the humerus that the person must have been about 1.58
metres
tall. Her ultimate conclusion was that it was possible that this
could have been the body of a 13-year old Black male.
Mr.
Kolver, a forensic entomologist, also attended the aforementioned
post mortem and he was able to determine the time of death
through
the study of insects found on the decomposing body. He explained
his findings and in terms thereof his ultimate conclusion
was that
the post mortem interval (i.e. the time period between the death and
the discovery of the body) could be between six
to eight weeks.
Assuming therefore that the body was indeed that of Thabang Bihi, he
concluded that the deceased had died shortly
after his disappearance
on 17 April 2004.
With regard to counts 6
and 7 respectively, the State alleged that the accused had on 5
February 2008 unlawfully and intentionally
killed one Norman Petrus
Watermeyer. On count 7 it was alleged that the accused had stolen a
pair of safety boots and a cellphone
from this aforementioned
deceased.
On
counts 8 and 9 the accused was charged with assault with intent to
commit grievous bodily harm on Veronica Benadé (his

girlfriend at the time) and one Rosemary Blom respectively. Counts
6 to 9 are the 2008 incidents.
The
deceased in count 6 was also known as Deon or Kosmos. On 12
February 2008 human remains were found in the veld in the vicinity

of Roodepan. It was formally admitted by the accused that these
remains were those of the deceased. The deceased had gone missing

on 5 February 2008 after having left his mother’s residence in the
company of the accused. According to his mother’s evidence,
the
deceased had been sent by a neighbour to purchase prepaid
electricity for her. The deceased was wearing black safety shoes

(similar to exhibit 1 before the Court) and he also had his
cellphone with him (the cellphone is exhibit 3 before the Court).
Subsequent
to his disappearance the deceased’s family (in particular his
mother and his brother Colin) received numerous telephone
calls from
an anonymous caller. The anonymous caller informed them that the
deceased intended to return home eventually and
that he was refusing
to go for his back operation. The caller never identified himself
and declined the request to put the deceased
on the line. After the
deceased’s remains were discovered and he was positively
identified, the anonymous caller alleged that
one Tefu was
responsible for the deceased’s death.
At
some stage Colin (the deceased’s brother), Dennis Thole (the
deceased’s cousin) and Tapelo Moetlo questioned the accused
about
information relating to the deceased’s death. This questioning
occurred in a veld some distance away from nearby houses.
The
evidence relating to the accused’s statements made in the presence
of the aforementioned three witnesses, was subjected
to a trial
within a trial to determine the admissibility thereof. After
evidence was led by the State, the accused closed his
case without
adducing any evidence. We ruled the statements admissible and also
the audio recording thereof made by Dennis Thole
on his cellphone,
which was later transcribed as exhibit LL before the Court. The
parties were
ad
idem
that
we should listen to the audio recording as part of the evidential
material upon which admissibility should be decided. We
did not
furnish reasons at the time and reserved same for the end of the
trial. These are the reasons. We found the three witnesses
for the
State to be credible and, more importantly, having listened to the
audio recording, it was evident that no evidence of
threats or undue
influence could be heard on the recording. The accused’s voice,
while somewhat weak and trembling on the
second part of the
recording, did not in our view exhibit indications of duress or
undue influence. In the absence of any evidence
controverting those
of the state witnesses, we had taken the view that the statements
were made by the accused while he was in
his sound and sober senses,
freely and voluntarily and without undue influence. The State had
therefore, in our view, discharged
its
onus
of
proof beyond reasonable doubt that the statements and audio
recording are admissible.
See generally:
S v
Z
uma
and Others 1995(2) SA 642 (CC);
S v Maasdorp 2008(2)
SACR 296 (NC).
In exhibit LL the
accused implicates one Tefu and also makes reference to the fact
that he was also present when the deceased
was killed.
In
addition to the aforegoing the State also led the evidence of
Veronica Benade (the accused’s girlfriend at the time) who

testified that she had asked the accused at some stage whether he
had in fact killed the deceased. He responded by admitting
that he
and Tefu had killed the deceased. This evidence was admitted,
because the accused did not contest the admissibility
thereof,
instead he simply, judging from the cross-examination, denied that
he had ever made such statements to Veronica.
A
pair of safety boots similar to those belonging to the deceased were
found in a shanty in the backyard of the premises of Veronica

Benade’s parents. These boots were handed in as exhibit 1
before the Court. Colin Watermeyer testified that he had given

these boots to the deceased and that they resemble the ones before
the Court. What is of particular significance is that Colin

testified that those boots were fairly new (as are those before the
Court) and were a size 6, similar to that before the Court.
The
deceased’s cellphone was found in the possession of Reginald
Malebe, the accused’s nephew. The accused had indicated
to
inspector Luis that the deceased’s cellphone was with Reginald and
it was confiscated from him. Cellphone records testified
to by two
witnesses on behalf of Cell C and MTN mobile networks respectively
(Ms Ince and Ms Du Plessis), indicate that calls
had been made from
the accused’s handset with two different prepaid simcards to the
deceased’s family who had received the
anonymous phone calls.
Inspector
Williams of the SAPS testified that the accused was handed over to
him after the family of the deceased had conveyed
to him that the
accused could provide information on the deceased’s murder. This
was after the questioning in the veld alluded
to in par 24
above. The accused provided a version to Inspector Williams that
the deceased had been murdered by persons
who had given them a lift.
According to the accused he was forced by these persons to hold the
deceased while he was being strangled.
In this regard there is a
discrepancy between the evidence of Mr. Williams and that of Dennis
Thole, to the extent that the
latter alleges that he had overheard
the interrogation of the accused by Mr. Williams where the accused
had in fact admitted
that he was present and had actively
participated in killing the deceased. We will revert to this
discrepancy later.
On counts 8 and 9
Veronica Benade and Rosemary Blom both testified that they were
assaulted by the accused in that they were throttled
by him.
Dr.
A Surtie conducted the post mortem examination on the deceased.
He could not find any indication of injuries on the
body of the
deceased, save that the left hyoid bone had a fracture. The cause
of death could therefore be possible strangulation.
He noted that
the body was in a state of decomposition and also had been partially
burnt.
Inspector
Luis testified about various exhibits he had confiscated,
inter
alia
the
deceased’s cellphone and the safety shoes resembling those he had
worn on the day of his disappearance. We might add at
this juncture
that the State adduced documentary and oral evidence regarding chain
evidence in respect of all exhibits. This
evidence was not attacked
at all by the defence, correctly so.
The
accused did not testify in his defence, nor did he call any
witnesses. The State’s case therefore stands uncontroverted
and
the guilt or otherwise of the accused must be assessed on the
State’s evidence before the Court.
We
have already indicated earlier in the judgment that the State relies
exclusively on circumstantial evidence and also on similar
fact
evidence.
In
the 1987
incident,
in our view, the following facts are either common cause or have
been proved beyond reasonable doubt by the State:
O
n
the day of the disappearance of the deceased she had left for
Mpiwa’s shop and the accused was seen following her.
T
he
accused was 16 years of age at the time and the deceased was 8
years old.
The
deceased and the accused were well-known to each other being
residential neighbours.
T
he
deceased went to Mpiwa’s shop alone where she purchased a loaf of
bread.
T
he
deceased was thereafter seen walking with the accused in the
direction of the Ipopeng stadium. They were seen less than
100
metres from the gate of the stadium in a direction opposite to that
of both their houses.
T
he
deceased was murdered at the Ipopeng stadium by strangulation and
that the person who had strangled her on the probabilities
also
attempted to rape her or assaulted her indecently. We deliberately
put the latter events no higher than this, since as
will appear
shortly, we are of the view that the State has not proved beyond
reasonable doubt the offences of attempted rape
or indecent
assault.
The
deceased’s body was concealed at the stadium in the vicinity of
the cloakrooms where there was no discernible footpath in
the
vicinity. The body was concealed with grass and a plastic bag.
The
accused conveyed
to the deceased’s family that he had found a body and, upon
being confronted by Mr. Borothelo that he was seen with the

deceased on the day in question in the vicinity of Mr. Borothelo’s
residence heading in the direction of the Ipopeng stadium,
he did
not dispute that.
The
accused pointed out the body of the deceased where he had allegedly
found her to the deceased’s family and had lifted up
the plastic
bag for them to see the body.
On
behalf of the State Mr. Barnard has forcefully argued that the
discovery of the body by the accused was no pure coincidence.
He
alluded to the fact that the body was found in a part of the stadium
which was not used by passers-by and that the accused’s
version
put in cross-examination that he had entered the stadium to look for
water was completely untenable, since the stadium
was in a disused
state for a number of years. The State relied strongly on similar
fact evidence in this matter, since this
is conceivably the one
incident where the State has led the least amount of evidence
against the accused. Mr. Barnard has
also argued that the State has
proved beyond reasonable doubt, based on the evidence of Mrs.
Botha and Mr. Borothelo,
that the accused was the person who was
walking with the deceased towards Ipopeng stadium. For
his part, Mr. Van
Tonder submitted that the evidence viewed
holistically, does not warrant as only inference that the accused
was the person
who had killed the deceased. In this regard we
must refer to the evidence of Prof. G. Labuschagne who
testified on
a comparison of the three cases before the Court (i.e.
the 1987, 2004 and 2008 incidents).
Prof.
Labuschagne is clearly an expert in his field. He is a forensic
psychologist and heads the investigative psychology unit
of the SAPS
at its head office in Pretoria. He compiled a comparison report
between the three murders as aforementioned. He
had regard only to
the
modus
operandii
and surrounding circumstances of the three murders. His objective
was to determine whether these three murders could have been

committed by one person and not whether the accused before Court is
the perpetrator in all or any of them. He convincingly testified

that there were three unique similarities between the three murders
namely:
That all three victims
were vulnerable, i.e. the deceased Martha Botha was only 8 years
old, Thabang Bihi was a 13-year old
boy and Norman Watermeyer was
sickly in that he suffered from scoliosis of the spine and had a
weakened right arm.
That
there had in all three cases been post mortem tampering with the
bodies,
i.e. in the first two instances (the Botha and Bihi-cases) the
suspect had covered the bodies with grass and branches respectively

and in the third instance (the 2008 incident relating to Norman
Watermeyer), the deceased appeared to have been partially burnt.
The
cause of death in the first and last cases was strangulation and in
the second instance (the 2004 matter relating to Thabang
Bihi) the
cause of death could not be determined due to advanced
decomposition, however the fact that a shoelace was found
in the
vicinity of the deceased’s neck was of particular significance.
His conclusion was that it was probable that the
three murders had
been committed by one person, although he could not state so beyond
reasonable doubt.
On
counts
2,
3 to 5, 6 and 7, the State asked this Court to find beyond
reasonable doubt that the only inference reasonably to be drawn
from
all the facts and circumstances proved and from the common cause
facts is that the accused was the one who perpetrated these

offences. Mr. Van Tonder on the other hand has submitted that the
State has failed to prove its case beyond reasonable doubt
and that
the inference sought to be drawn is not the only reasonable one in
the circumstances.
A
useful point of departure in our findings in this matter is the
question of credibility. Mr. Van Tonder has understandably
not
argued that the State’s case is not credible. All the witnesses,
generally speaking, appear to us to have been truthful
and reliable
witnesses. There are certain discrepancies in the State’s case,
but none of the materiality that would cause
us to reject a
witness’s evidence. Having said that, we must record that we have
approached the evidence of Mr. Dennis Thole,
regarding the accused’s
alleged confession to Inspector Williams, with considerable caution.
This evidence is at variance
with that of Inspector Williams (see
par 28 above) and we prefer the latter’s version to that of
Mr. Thole, on this aspect.
As we shall presently show, the State
has nevertheless, even excluding that part of Mr. Thole’s
evidence, established adequate
proof of the accused’s guilt.
Generally therefore we find that the State has presented a credible
case based on circumstantial
evidence and the only question that
remains is the probative value thereof. Put differently:
a) Is
the inference sought to be drawn, i.e. that the accused is the
murderer in all three these
incidents
consistent with all the proved facts? and
b) Are
the proved facts of such a nature that they exclude every reasonable
inference from them save the one sought to be drawn,
namely that the
accused had murdered the deceased in the 1987, 2004 and 2008
incidents?
See in
this regard the well-known
dictum
of
Watermeyer JA in
R
v Blom
1939 AD 188
at
202-203.
With
regard to the 2004 incident, we are of the view that the following
are the common cause facts or the facts which the State
has
proved beyond reasonable doubt:
a) Thabang Bihi had
disappeared on 17 April 2004 and has never been seen since. No other
children or adults had been reported missing
in the Warrenton area
during that time.
b) The person whose body
was found in a shallow grave in the backyard in Warrenton had
suffered an unnatural death and had been
murdered, which is explained
by the fact that the body was buried in a shallow grave so as to
conceal same.
c) In
all likelihood the deceased had been strangled, given the presence of
a shoelace in the vicinity of the neck. The absence
of blunt force
on the bones as testified to by Dr. Liebenberg indicates that the
only reasonable inference to be drawn is that
the deceased had been
strangled with a shoelace.
d) It
is striking that the accused had mentioned that Thabang Bihi had been
strangled by another person (Mr. Ishmael Motingwe).
This he mentioned
to Superintendent Verster and Inspector Luis, even before a post
mortem had been conducted by Dr. Liebenberg.
This strongly suggest
peculiar knowledge on his part, which is unexplained before us,
except to reflect adversely on the accused.
e) The
identity of the deceased has been established beyond reasonable doubt
as that of Thabang Bihi. We come to this conclusion
based on the
evidence of Dr. Liebenberg regarding the estimated age, sex and race
of the deceased; the evidence of Mr. Kolver
regarding the date of
death; the identification of the clothing by Mr. Bihi and the
admission that Thabang Bihi had disappeared
on 17 April 2004 and that
no other children or males had been reported missing at that time.
In addition there is the version
of the accused conveyed to
Superintendent Verster and Inspector Luis that Mr. Motingwe had
strangled Thabang Bihi in that house.
f) The
duvet cover material found in the shallow grave wrapped around the
body and that which were used as curtains in the lounge
of the house
were the same, based on the evidence of Ms Thomas, Mr. Papier, Ms
Modise and the forensic tests by Mr. Khoza of the
SAPS forensic
laboratory (exhibit S before the Court).
g) The
aforementioned material was used by the accused at that Warrenton
house and also at other houses previously guarded by him
on behalf of
his employers. The State’s evidence proves conclusively that the
duvet cover belonged to the accused.
h) Thabang
Bihi’s murderer had wrapped the body in the aforementioned duvet
cover material before burying it in the shallow grave.
i) Thabang
Bihi had been murdered and buried in that shallow grave at the time
when the accused had been guarding that house in
Warrenton.
We
will
revert to the inferences to be drawn from the aforementioned proved
or common cause facts in due course. We turn now to
the common
cause facts and the facts which the State had proved beyond
reasonable doubt regarding the 2008 incident.
In our view the
following are common cause facts or have been proved beyond
reasonable doubt by the State:
That
the deceased had disappeared on the day when he was last seen with
the accused, namely 5 February 2008. The deceased was
never seen
again.
It is common cause that
the body found in a partially burnt and partially decomposed state
in the veld in Roodepan on 12 February
2008 was that of the
deceased Norman Watermeyer.
The
cause of death based on Dr. Surt
ie’s
evidence was strangulation. This is to some extent supported by
the accused’s version made to Colin, Dennis and Thapelo
and also
to Inspector Williams.
During
February 2008 the accused was in possession of the deceased’s
cellphone, exhibit 3 before the Court. This is clear
from the
evidence of Reginald Malebe and also from cellphone records handed
in as exhibit
s
V and X in particular.
The aforementioned
cellphone records prove conclusively that the accused was the one
who had made anonymous phone calls regarding
the deceased’s
disappearance to the deceased’s family.
The shoes before the
Court, exhibit 1, are those worn by the deceased on the day of his
disappearance and these were found in
a shanty occupied by the
accused and Veronica Benade at the time.
All
the evidence points conclusively thereto that the shoes and
cellphone were stolen from the deceased at the time of his murder.
The
audio recording, the transcript thereof which is exhibit LL
before the Court, and the evidence of Colin, Denis and
Thapelo as
well as the evidence of Inspector Williams indicate that the
accused was present when the deceased had been murdered
and it
involves him to a greater or lesser extent in the execution of the
assault on the deceased.
The
allegation by the accused that Tefu had committed the murder is not
substantiated by any evidence before the Court and was
rightly
regarded by the police as a false trail and as a red herring
created by the accused so as to confuse them in their

investigation.
The phone calls made
by the accused to the deceased’s family from the deceased’s
cellphone, were similarly designed to create
a false trail, i.e. by
creating a pretence that the deceased was still alive and well.
With
regard to the 1987 incident we are satisfied that the State has
proved beyond reasonable doubt that the deceased was in fact
in the
company of the accused heading to the Ipopeng stadium, based on Mr.
Borothelo’s evidence. Mr. Borothelo struck us as
a particularly
honest witness. The Court
conducted
an inspection
in
loco
subsequent
to his evidence to inspect the scene which he had testified about.
The scene was consistent with Mr. Borothelo’s
observations. It
was quite evident that Mr. Borothelo did not seek to exaggerate his
evidence against the accused, nor did he
embroider on what he had
seen on that day. In
R
v Dladla and Others 1962(1) SA 307 (A)
at 310 B-E the Appeal Court alluded to the fact that a
particularly important factor in the identification of a suspect
is
a witness’s previous knowledge of the suspect. In the present
matter Mr. Borothelo quite clearly knew the accused well,
since he
had visited quite frequently in the street where the accused stayed.
We are consequently satisfied that Mr. Borothelo’s
evidence of
the identity of the accused can be accepted without hesitation.
That evidence is also to a large extent corroborated
by the mother
of the deceased who had seen the accused following the deceased. In
his witness statement taken down by Inspector
April, the accused
also confirms that the deceased had walked behind him.
We
now consider the law relating to similar fact evidence and
circumstantial evidence. With regard to the latter, we have already

referred to the leading
dictum
of
R
v Blom
supra
.
It is well to remember the following instructive
dictum
by
Lord Wright in
Caswell
v Powell Duffryn Associated Collieries Ltd 1940 AC 152
at
169:
“
Inference
must be carefully
distinguished
from conjecture or speculation. There can be no inference less there
are objective facts from which to infer other
facts which it is
sought to establish … but if there are no positive proved facts
from which the inference can be made, method
of inference fails and
what is left is mere speculation or conjecture.”
In
deciding whether the State has proved its case beyond reasonable
doubt based on circumstantial evidence, we need to take into
account
the cumulative effect of the evidence before us as a whole. It is
impermissible and an incorrect approach
to
consider the evidence piecemeal.
See in
this regard:
S
v Reddy 1996(2) SACR 1 (A)
at
10 b-d.
See
also:
S
v Snyman 1968(2) SA 582 (A)
at
589 F;
S v
Hassim 1973(3) SA 443 (A)
at 457 H.
S v
Zuma 2006(2) SACR 191 (W)
at
209 b-i.
In
assessing
the
circumstantial evidence before us, we must not lose sight that
circumstantial evidence can vary from case to case in its nature
and
cogency. Thus the following remarks made by Lord Coleridge in
R
v Dickman,
referred
to in
Wills
on Circumstantial Evidence, 7
th
Ed
at 46 and 452-60, are apposite:
“
''It is
perfectly true that this is a case of circumstantial evidence and
circumstantial evidence alone. Now circumstantial evidence
varies
infinitely in its strength in proportion to the character, the
variety, the cogency, the independence, one of another, of
the
circumstances. I think one might describe it as a network of facts
around the accused man. That network may be a mere gossamer
thread,
as light and as unsubstantial as the air itself. It may vanish at a
touch. It may be that, strong as it is in part, it
leaves great gaps
and rents through which the accused is entitled to pass in safety. It
may be so close, so stringent, so coherent
in its texture, that no
efforts on the part of the accused can break through. It may come to
nothing - on the other hand it may
be absolutely convincing. . . .
The law does not demand that you should act upon certainties alone. .
. . In our lives, in our
acts, in our thoughts we do not deal with
certainties; we ought to act upon just and reasonable convictions
founded upon just and
reasonable grounds. . . . The law asks for no
more and the law demands no less.'' '
This
approach to circumstantial evidence has recently again been restated
by the Supreme Court of Appeal in
Benzani
Nxumalo v The State (case no 450/2008) [2009] ZASCA 113
,
delivered on 23 September 2009.
The
next legal issue for consideration is similar fact evidence.
It is firmly established in our law that this type of evidence is
only admitted in exceptional circumstances. In
Schmidt
and Rademeyer, THE LAW OF EVIDENCE,
at
15-22, the following useful summary is contained regarding similar
fact evidence â€“ similar facts are admissible if they
are
relevant and evidence can be relevant only if a reasonable inference
may be drawn from it about a fact in issue. Similar
facts must be
distinguished from criminal propensity and it is therefore improper
to draw an inference of guilt merely from a
propensity to commit
crime. There must of course be a logical connection between the
factum
probans
(the similar fact) and the
factum
probandum
(the fact to be proved).
See in
this regard:
Stephen,
DIGEST OF THE LAW OF EVIDENCE
,
11
th
Ed
on 171 at footnote vii where the learned author states:
“
You are not
to draw inferences from one transaction to another, which is not
specifically connected with it merely because the two
resemble each
other. They must be linked together by the chain of cause and effect
in some assignable way before you can draw
your inference. Such a
connection may be found for example through the improbability of
coincidence. What is meant here is that
the more striking the
similarity of events are, the more improbable the possibility of
coincidence would be.”
In
this regard Schmidt and Rademeyer supra a
t
15-6 (footnote 26) cite the example of
R
v Simms 1946(1) ALL ER 697
where the accused had been charged with committing indecent acts with
four persons. The four complainants each gave an identical
account
of how they had met the accused and what he had subsequently done.
Evidence given by each complainant was held to be relevant
in respect
of each incident because the Court held that it was improbable that
all the complainants would think up an identical
version.
See
further, generally:
Hoffmann
& Zeffert, The South African Law of Evidence, 4
th
ed
at
55.
Lastly on the law we
need to consider the effect of the accused’s silence. It is trite
that the accused bears no onus to prove
his innocence or to disprove
the State’s case.
See in
this regard the well-known
dictum
of
R
v Difford 1937 AD 370.
The
decision not to testify is
,
however, not without consequences. Thus in
S
v Boesak 2001(1) SACR 1 (CC)
at
par [24] the Court held that:
“
The fact that
an accused person is under no obligation to testify does not mean
that there are no consequences attaching to a decision
to remain
silent during the trial. If there is evidence calling for an answer,
and an accused person
chooses
to remain silent in the face of such evidence, the Court may well be
entitled to conclude that the evidence is sufficient
in the absence
of an explanation to prove the guilt of the accused. Whether such a
conclusion is justified will depend on the
weight of the evidence.”
See also in this regard:
S v Brown 1996(2)
SACR 49 (NC);
S v Chabalala 2003(1)
SACR 134 (SCA).
In the
present matter the State’s evidence stands uncontroverted and the
inferences sought to be drawn must be assessed on the
basis
of the cogency of the State’s case alone.
Lastly
it is necessary to reiterate again that the State does not have to
prove its case beyond all possible doubt.
In
S
v Ntsele 1998(2) SACR 178 (SCA)
at 182 b-f Eksteen JA in referring to
Miller
v Minister of Pensions
[1947] 2 ALL ER 372
at
378 H stated that:
“
Die bewyslas
wat in ‘n strafsaak op die Staat rus is om die skuld van die
aangeklaagde bo redelike twyfel te bewys – nie bo
elke sweempie van
twyfel nie.
A
factor
weighing
very heavily with us in applying these legal principles to the facts
before us is the improbability of coincidence in
the context used by
Stephen,
Digest of the Law of Evidence
,
supra
and
R
v Simms
,
supra
(see par. 45 above). We find it utterly improbable that by sheer
coincidence:
in respect of the 1987
incident:
(a) the accused is seen
following the deceased when she leaves her house on the errand to
purchase bread; and
(b) the accused is seen
with the deceased heading towards Ipopeng stadium (where the
deceased’s body is later found) in a direction
away from the
accused’s and the deceased’s houses and also away from Mpiwa’s
shop; and
(c) the
accused is the one who discovers the deceased’s body in a seemingly
remote, unused part of the stadium in circumstances
where not even a
casual passerby would have noticed the concealed body; and
(d) the
accused does not take issue with the report by Mr. Borotelo that he
had seen the accused in the deceased’s company in
the vicinity of
the Ipopeng stadium.
Regarding the 2004
incident:
(a) Thabang
Bihi disappears on the very same day that the accused (on his own
admission) enters the Bihi residence and steals various
goods
therefrom; and
(b) Thabang’s body is
discovered in a shallow grave in the backyard of the house that the
accused had been occupying (as a guard)
at that time; and
(c) the very same
material belonging to the accused and used by him at that time (and
previously) as curtains, is found wrapped
around Thabang’s body;
and
(d) the
accused makes a statement to Superintendent Verster and Inspector
Luis that Thabang had been
strangled
by Mr. Motingwe, thus imputing peculiar knowledge to the accused
since at that stage no post mortem examination had as yet been

conducted on the deceased’s body.
In respect of the 2008
incident:
(a) the
accused leaves with the deceased
while the latter is in possession of his cellphone and safety shoes;
and
(b) the accused is later
found in possession or in control of the shoes and cellphone; and
(c) the accused is the
anonymous caller who leads the deceased’s family to falsely believe
that the deceased is alive and well;
and
(d) without knowing that
Dr. Surtie has found the deceased’s hyoid bone to be fractured
(thus indicating strangulation) the accused
conveys to various
persons that the deceased had been strangled, again imputing peculiar
knowledge regarding the deceased’s death;
and
(e) the
accused again blames others for the murder, as is the case in the
2004 incident.
Similar fact evidence
has played a decisive role in our decision on count 2, the murder of
Martha Botha. These similar facts
are in our view highly relevant,
have a logical connection and go substantially beyond mere
coincidence. Professor Labuschagne
alluded to the three unique
similarities in the three cases. To recapitulate, those are:
(a) all three were
vulnerable victims;
(b) in
all three instances there has been some form of tampering with the
bodies post mortem;
(c) strangulation was the
common cause of death.
To the above three
similarities one can add the following:
Strangulation is a
somewhat unusual method of assault and yet we have here five
strangled victims in the three deceased and
Ms Benade, the
complainant in count 8 and Ms Blom, the complainant in count 9.
Strangulation appears to be the accused’s
favoured method of
assault and this similarity appears to us to be more than mere
coincidence.
In two of the three
instances items had been removed from the scene (i.e. in 2004 and
2008).
In all three incidents
the victims were well known to the accused and were seen with or in
the vicinity of the accused on the
fateful day of their
disappearance.
In
the 1987 and 2008 cases the accused was to some or other extent
involved in the investigation.
In the 2004 and 2008
incidents the accused attempted to place the blame on someone else.
We
accordingly find that these similarities overwhelmingly point to the
accused as the perpetrator.
We
are satisfied on counts 5 and 6 (the 2004 and 2008 murders) that the
State has, through circumstantial evidence, proved beyond
reasonable
doubt that the accused perpetrated those offences. With regard to
count 2, the murder of Martha Botha, similar fact
evidence has
persuaded us that the accused’s guilt has been proved beyond
reasonable doubt, when taking into account further
the
circumstantial evidence implicating the accused. We find that the
proved and common cause facts justify beyond reasonable
doubt as the
only reasonable inference that the accused is the perpetrator of all
three these murders. Furthermore the similar
fact evidence presents
a discernible unique pattern and
modus
operandi
quite beyond mere coincidence, all pointing to the accused’s
guilt.
Mr.
Van Tonder has effectively conceded that the State has proved its
case on counts 4 and 7 (theft relating to the 2004 and 2008

incidents). That concession has been correctly made. With regard
to count 3 (kidnapping) Mr. Barnard has not asked for a conviction,

correctly so.
What remains for
decision is counts 1 (attempted rape of Martha Botha), 8 and 9
(assault with the intent to commit grievous bodily
harm on Veronica
Benade and Rosemary Blom respectively). On count 1 we have,
after careful consideration, come to the conclusion
that the paucity
of evidence does not establish that the victim had in fact been
indecently assaulted or that there had been
an attempt to rape her.
We have only the evidence of Dr. Els in this regard and that is
rather inconclusive as alluded to above.
The accused must therefore
be acquitted on this count.
Lastly,
Mr. Van Tonder has submitted that counts 8 and 9 amount to
trivialities and the maxim “
de
minimis non curat lex
”
should apply. We disagree. The two complainants were strangled, in
the case of Ms Benade, more severely so. We are of the
view that
these acts constitute punishable criminal wrongdoing in law. We do
however agree with Mr. Van Tonder’s alternative
submission that
these two instances constitute common assault given the nature and
gravity of the injuries sustained.
This
has been a difficult case for all concerned, albeit for differing
reasons. As a Court we had to deliberate long and hard
to reach a
decision. The complexity of the case is to be found in the
circumstantial and similar fact evidence. Mr. Van Tonder
has had a
trying time from the start to conduct a meaningful defence, for the
reasons outlined in the introduction of this judgment.
He has done
rather well in the circumstances. The State (and here I include the
two prosecutors and the SAPS investigating
team) have excelled in
investigating and
prosecuting
this case to its ultimate successful conclusion. The difficulties
should be self-evident, given the fact that the
1987 matter occurred
twenty two years ago, the inquest docket had been destroyed and
material witnesses have passed away or have
retired. The same
obstacles presented themselves to a lesser extent in the 2004
matter. Dogged persistence and diligent investigation
coupled with
meticulous prosecution have borne fruit for the State. The
investigation and prosecution teams are deserving of
commendation
and we unreservedly oblige.
We find as follows:
The accused is
convicted on counts 2, 4, 5, 6 and 7 as indicted.
The accused is
convicted of common assault on counts 8 and 9.
The accused is
acquitted on counts 1 and 3.
______________ _________________ ______________
SA
MAJIEDT BM
PAKATI-MABUZA B. BABUSENG
JUDGE ASSESSOR ASSESSOR
FOR
THE STATE :
ADV
T BARNARD AND ADV T MASHUGA
FOR
THE ACCUSED : MR A VAN TONDER