REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
(2)
(3) REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES : YES/NO
REVISED : YES/NO
In the matter between:
JOSHUA PHUTHI HLAKO
MARCUS MAKGATO
AMANDA MAKGATO
KHUMBELO MABIRIMISA
and
THE STATE CASE No: AA02/2024
SCA CASE NO: 1314/2023
LP CASE NO: CC 121/2022
FIRST APPELLANT
SECOND APPELLANT
THIRD APPELLANT
FOURTH APPELLANT
REPONDENT
This judgment was handed down electronically by circulation to
the parties' representatives via e-mail. The date and time for
hand-down is deemed to be on 2025/o 't-\2{)
Page -2
JUDGMENT
DIAMOND AJ:
[1] The court a qua (Muller J) convicted the First, Second and Fourth
Appellants on counts of murder, kidnapping and defeating the end
of justice and the Third Appellant on a count of kidnapping. The
court a qua convicted the Appellants on 19 September 2023. I will
henceforth refer to the Appellants as the "accused."
[2] The accused applied, on 11 November 2023, to the court a quo,
for leave to appeal whiGh was refused.
[3] In a noticeably short judgement , the court a qua held as follows:
"Taking into account all the facts and the grounds of appeal, I
come to the conclusion that another court will not come to a
different conclusion from the conclusion that this court has
reached, nor any other reasons apart from that, for the court to
grant. In the result, the application for leave to appeal is refused."
[4] The accused subsequently applied for leave to appeal to the
Supreme Court of Appeal, and leave was granted to lodge an
appeal to the Limpopo Provincial Division.
[5] The accused lodged an appeal against both the convictions and
sentences imposed.
Page -3
[6] This appeal came before us on 22 November 2024.
[7] The sequence of events, which is the subject matter of this appeal,
began on the 14th of January 2006, in the township of
Soshanguve , near Pretoria. One Ronald Makgato (the "Deceased' '
and his sister, Gertrude Leboho ("Gertrude "), lived in Soshanguve ,
in different houses.
[8] On 14 January 2006, Gertrude expected a visit from the Deceased
at her home. He never turned up. In fact, her testimony was that
he had disappeared .
[9] Gertrude opened the docket of a missing person, at the Akasia
police station which is a police station situated in Pretoria1.
(1 OJ The testimony continued as follows:
"After having reported or opening a docket of the missing person,
that is when the help of extended family members we started
searching for our missing brother. We went to the hospitals. We
went to the mortuaries. We also went to the prophets wherein we
were told about, wherein we were informed about Marcus
Makgato."
(11] Marcus Makgato is accused 2.
1 P. 22 Record.
Page -4
[12] Gertrude further testified that the investigations led them to
the two young men, viz Gabriel Matli ("Gabrief')2 and
Sibone Matome ("Matome")3.
[13] In the year 2021 Warrant Officer Seroka ("Seroka"), was
stationed at the Seshego police station.
[14] It is a matter of public knowledge that the distance between
Soshanguve and Seshego is approximately 250 kilometers.
[15] Seroka started investigations at the end of 2021/beginning
of 2022, in Seshego and vicinity, which led to the four
accused being charged on 14 March 2023, in the Limpopo
Division of the High Court, with the counts of kidnapping,
murder and defeating the ends of justice.
[16] The Deceased's body was never found.
[17] The four accused pleaded not guilty and gave no
explanation of plea in terms of Section 115 of the Criminal
Procedure Act, 1977.
[18] Both Gabriel and Matome gave statements to the police
prior to commencement of the trial, and both testified at the
trial.
2 P. 23 of the record.
3 P. 24 of the record.
Page -5
[19] Gabriel testified that in January 2006, accused 1 came to
his home in Ga Matlala. Accused 1 requested Gabriel to
drive with him to Seshego. He eventually instructed Gabriel
to drive to Soshanguve. There, they met up with another
motor vehicle, and it transpired later that the motor vehicle
was driven by accused 2. They followed this motor vehicle
to a certain house. They stopped at the house and accused
3, whom he recognised as being a person which is resident
in Ga Matlala, and an unknown female person, appeared
from the house with an unknown male person which was
visibly dizzy.
[20] Accused 2 assisted the two ladies to drag the unknown
person to his car, and accused 1 went and opened the door
of the motor vehicle of the case number 2. They put the
unknown male person in the motor vehicle of accused 2.
[21] The unknown male person later turned out to be the
Deceased .
[22] Gabriel described how the two vehicles returned to the
home of accused 1 in Seshego, Zone 4.
[23] He testified that when they approached the house of
accused 1, he gave his phone to him (that is to Gabriel},
instructing him to phone Matome, who was at his home and
requested him to open the gates. Gabriel did do so.
Page -6
[24] In his statements and testimony, Matome confirmed having
received the telephone call.
[25] From thereon, the testimonies and statements of Matome
and Gabriel both describe how the Deceased was
horrifically murdered .
[26] Both the testimonies and statements corroborate each
other in all substantial aspects, even to the level of specific
details.
[27] The testimonies place themselves , and the first, second
and fourth accused, amongst others on the scene of the
murder. According to the statements, at least all five
participated actively in the murder.
[28] The content of paragraph [19] to [27] above, is a short and
cursory summary of the sequence of events. I will, to the
extent necessary, refer to further detail below.
[29] The court a quo convicted the accused based entirely on
the statements and testimonies of Gabriel and Matome.
[30] The court a quo approached the assessment of the
evidence as follows:
4 P. 856 bundle. Page -7
• It was established beyond reasonable doubt that the
deceased disappeared on 14 January 2006 and that
he had not been seen up until the date of the trial. 4
• The defence of the First, the Second and the Fourth
Accused was simply that the incident as described
by Matome and Gabriel never took place. The court
a qua remarked that the significance of this defence
is that once it is found that the incident as described
by Gabriel and Matome did take place, then the
conviction must follow, since the defence of the
accused does not leave room for interpretation that
the incident did take place but that they were not
involved in the incident.
• After having assessed the statements and evidence
of both Matome and Gabriel with detailed caution
regarding inaccuracies, contradictions, the fact that
the statements and testimonies were given 14 to 16
years after the incident, and the fact that both
Matome and Gabriel testified under section 204 of
the criminal procedure act, the court a qua
nonetheless came to the conclusion that the
statement and testimonies were truthful.
Page -8
• The accused were convicted since the court opined
that the incident occurred as described by Gabriel
and Matome.
[31] In the appeal, Mr Mpshe SC who appeared for the
accused, listed several contradictions and inconsistencies
in the evidence of various state witnesses . He submitted
that the effect of these inconsistencies was that there was
reasonable doubt as to the version of the state and that for
that reason the appeal should be successful , and the
convictions set aside.
[32] Mr Mpshe referred the appeal court to, amongst others, the
case of S v MAFALADISO EN ANDERE 5 ("Mafaladiso") in
which the Supreme Court of Appeal had to assess the
impact of contradictions in the testimony of witnesses and
not only between witnesses but also between the testimony
of witnesses and prior conflicting statements.
[33] The judgement of S v PHK6 ("PHK') provides, in my view, a
handy summary and interpretation of the thrust of approach
described by the Supreme Court of Appeal in Mafaladiso .
In paragraph 20 of PHK the following is stated:
"In Mafaladiso it is summarised in the headnote that the
juridical approach to contradictions between two witnesses
5 2003 (1) SACR 583 (SCA).
6 2023 (2) SACR 234 (FB).
Page -9
and contradictions between the versions of the same witness
(such as, inter alia, between her or his viva voce evidence
and a previous statement) , is, in principle (even if not in
degree), identical. Indeed, in neither case is the aim to prove
which of the versions is correct, but to satisfy oneself that the
witness could err, either because of a defective recollection
or because of dishonesty. The mere fact that it is evident that
there are self-contradictions must be approached with
caution by a court. Firstly, it must be carefully determined
what the witnesses actually meant to say on each occasion,
in order to determine whether there is an actual contradiction
and what is the precise nature thereof. In this regard the
adjudicator of fact must keep in mind that a previous
statement is not taken down by means of cross-examination,
that there may be language and cultural differences between
the witness and the person taking down the statement, which
can stand in the way of what precisely was meant, and that
the person giving the statement is seldom, if ever, asked by
the police officer to explain their statement in detail.
Secondly, it must be kept in mind that not every error by a
witness, and not every contradiction or deviation, affects the
credibility of a witness. Non-material deviations are not
necessarily relevant. Thirdly, the contradictory versions must
be considered and evaluated on a holistic basis. The
circumstances under which the versions were made; the
proven reasons for the contradictions; the actual effect of the
contradictions with regard to the reliability and credibility of
the witness; the question whether the witness was given a
sufficient opportunity to explain the contradictions -and the
quality of the explanations -and the connection between
the contradictions and the rest of the witness's evidence,
amongst other factors, are to be taken into consideration and
weighed up. Lastly, there is the final task of the trial judge,
namely, to weigh up the previous statement against the viva
voce evidence, to consider all the evidence and to decide
whether it is reliable or not, and to decide whether the truth
has been told, despite any shortcomings . (At 593e -594h.)"
[34] To balance all the above considerations requires that the
court shall act with "judicial wisdom."7
7 PHK, Par 21.
Page -10
[35] Mr Mpshe further referred the court to the judgement of S
v VAN DER MEYDEN ("van der Meyden") 1999 (1) SACR
447 (W):
"The onus of proof in a criminal case is discharged by the
State if the evidence establishes the guilt of the accused
beyond reasonable doubt. The corollary is that he is entitled to
be acquitted if it is reasonably possible that he might be
innocent (see, for example, R v Difford 1937 AD 370 at 373 and
383). These are not separate and independent tests, but the
expression of the same test when viewed from opposite
perspectives . In order to convict, the evidence must establish
the guilt of the accused beyond reasonable doubt, which will be
so only if there is at the same time no reasonable possibility that
an innocent explanation which has been put forward might be
true. The two are inseparable , each being the logical corollary
of the other.
In whichever form the test is expressed , it must be satisfied
upon a consideration of all the evidence. A court does not look
at the evidence implicating the accused in isolation in order to
determine whether there is proof beyond reasonable doubt, and
so too does it not look at the exculpatory evidence in isolation
in order to determine whether it is reasonably possible that it
might be true. In R v Hlongwane 1959 (3) SA 337 (A), after
pointing out that an accused must be acquitted if an alibi might
reasonably be true, Holmes AJA said the following at 340H-
341 B, which applies equally to any other defence which might
present itself-'But it is important to bear in mind that in applying
this test, the alibi does not have to be considered in isolation ..
The correct approach is to consider the alibi in the light of the
totality of the evidence in the case, and the Court's impressions
of the witnesses' exculpatory evidence in isolation in order to
determine whether it is reasonably possible that it might be true.
In R v Hlongwane 1959 (3) SA 337 (A), after pointing out that
an accused must be acquitted if an alibi might reasonably be
true, Holmes AJA said the following at 340H341B , which
applies equally to any other defence which might present itself
'But it is important to bear in mind that in applying this test, the
alibi does not have to be considered in isolation . The correct
approach is to consider the alibi in the light of the totality of the
evidence in the case, and the Court's impressions of the
witnesses . '
Page -11
[36] In S v Mahlangu and another8 the court restated the principles
relating to written statement by witnesses, and in my view, the
following statement of the court carries particular meaning
within the context of the current case:
"By reason of the criticism levelled at police witness
statements , I find it necessary to restate the principles relating
to written statements by witnesses . In order to discredit a
witness who made a previously inconsistent statement it must
be shown that the deviation was material (S v Bruiners en 'n
ander1998 (2) SACR 432 (SE) at 437e; S v Mafaladiso en
andere 2003 (1) SACR 583 (SCA) at 593e). Deviations which
are not material will not discredit the witness. Police statements
and statements obtained from witnesses by the police, are
notoriously lacking in detail, are inaccurate and often
incomplete . A witness statement is in the main required to
enable the prosecuting authority to determine whether a
prosecution is called for, on what charge and to consider which
witnesses to call on which issues. It would be absurd to expect
a witness to say exactly in his statement what he will eventually
say in court. There will have to be indications other than a mere
lack of detail in the witness's statement to conclude that what
the witness said in court was unsatisfactory or untruthful.
There is no law that compels a witness what to say and what
not to say in his statement. The witness tells it as he sees it. He
is not expected to relate in his statement what he saw in the
minutest detail. Should a witness through a lapse of memory or
any other valid reason omit some detail which later could
become important , he should not as a matter of course be
branded as being untruthful. Moreover the mere fact that a
witness deviates in a material respect from what he said in his
statement does not necessarily render all his evidence
defective. The court will in the final analysis consider the
evidence as a whole in order to determine in what respects the
witness's evidence may be accepted and in what respects it
should be rejected. Counsel who act on behalf of accused
persons, are wont to pounce on any differences , no matter how
insignificant, which may arise between an extra-curial
statement of a witness and the witness's testimony in court (see
S v Govender and others 2006 (1) SACR 322 (E) from
326c, where Nepgen J gives an insightful discourse on this
topic). The witness is often lambasted where his testimony in
court gives more detail than what appears in his written
8 [2012] JOL 29277 (WC) on P. 41.
Page -12
statement . The more differences that can be found between the
statement and the testimony in court, the more successful
counsel feels his cross-examination has been. However, as has
been pointed out, that is not the correct approach . The test is:
were the differences material, always bearing in mind that a
witness's testimony in court will almost without exception be
more detailed than what the witness said in his written
statement.
It is so that there were differences between the police
witnesses' statements and their testimony , that was to be
expected, but the underlying theme remained the same,
namely, a report was received that the deceased was killed in
his house and the accused took the police to the scene. There,
the body of the deceased was found and the accused,
particularly accused 1, admitted that he killed the deceased.
Any differences there might have been in the witnesses'
statements could not change or influence these crucial facts. In
material respects, therefore, the witnesses were consistent and
only deviated from their statements in respect of non-essential
issues. "
[37] Both Mr Jacobs, who appeared for the state and Mr Mpshe
referred this court to a litany of judgments, all of which
articulate the approach that a court should take when
evaluating contradictions in the evidence of witnesses.
Each of these judgements articulates the principles
involved seen from different perspectives and in different
ways. It will serve no purpose to repeat those judgements
here.
[38] Furthermore , it is clear that this appeal revolves entirely
around how discrepancies and contradictions in evidence
should be reviewed and assessed.
Page -13
[39] In order to create some structure for a court's approach
when assessing the effect of contradictions in the
statements and evidence of witnesses, one can explicate a
basic typology of considerations, based on the above
judgements and other judgements to which the legal
representatives referred us to:
• All evidence, including the contradictions, must be
taken into account, and no evidence may simply be
ignored.
• The mere existence of a contradiction does not lead
to the automatic rejection of the evidence.
• The court must make a materiality assessment of the
contradiction . There is a difference between material
inconsistencies and minor discrepancies that do not
impact on the substance of the evidence.
• The court must take an integrated approach to the
inconsistencies. In this regard, the considerations
enumerated by Mafaladiso are particularly
important. Cultural differences, possible in the
inaccurate translation of testimonies and
misunderstandings should all be considered and
properly weighed.
Page -14
• The court must assess very carefully whether a
contradiction is the result of a mere collapse of
memory as opposed to an intended and possibly
coordinated falsehood .
• The court must ask itself the question whether there
is an underlying cogent and coherent theme
appearing from the evidence, and if so assess
carefully whether the contradictions and
inconsistencies disturb this underlying theme.
[40] In my view, the following statement from DIE DROS (PTY)
LTD AND ANOTHER v TELEFON BEVERAGES CC AND
OTHERS9 , provides a sensible point of departure to
evaluate evidence in general:
"Facts may be either primary or secondary . Primary facts
are those capable of being used for the drawing of
inferences as to the existence or non-existence of other
facts. Such further facts, in relation to primary facts, are
called secondary facts. (See Willcox and Others v
Commissioner for Inland Revenue 1960 (4) SA 599 (A) at
602A; Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA
75 (W) at 781.) Secondary facts, in the absence of the
primary facts on which they are based, are nothing more
than a deponent's own conclusions (see Radebe and
Others v Eastern Transvaal Development Board 1988 (2)
SA 785 (A) at 793C -E) and accordingly do not constitute
evidential material capable of supporting a cause of action."
[41] Once a body of primary facts (all primary evidence) , is
found by the court to exist then it becomes a question of
9 2003 (4) SA 207 (C).
Page -15
inference to draw probable logical inferences as to the
existence of secondary facts, and not only secondary facts
but also conclusions as to legal principles applicable in a
particular case.
[42] Questions of relevance, probative value, the assessment of
probabilities and the nature of inferences to be drawn, have
received judicial and scholarly attention over the years.10 In
assessing these issues the following well-known remark of
Schreiner JA, when it comes to the duty of the judge in this
regarding which it was said that a judge must apply a
"blend of common sense, Judicial experience and logic,
lying outside the law."11
[43] The following question can be posed against the above
backdrop: what exactly is the essence of a primary fact, or
primary evidence. In this regard the remark in S v Mehlape12,
where the Supreme Court of Appeal made the following
statement with regard to the identification of an accused by an
eyewitness:
"(t)he nature of the opportunity of observation which may be
required to confer on an identification in any particular case
the stamp of reliability, depends upon a great variety of factors
or combination of factors; for instance the period of
observation, or the proximity of the persons, or the visibility,
1° Constantine Theophilopoilos and Adrian Bellengere, 'Relevance, Admissibility and
Probative Value in a Rational System of Evidence: A South African Perspective' (2022) 25
Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad
<https://www.ajol.info /index.php /pelj/article /view/23685 l> accessed 7 April 2025.
11 R v Mathews 1960 1 SA 752 (A) 758.
121963 (2) SA 29 (A) at 33 A -B.
Page -16
or the state of the light, or the angle of the observation, or prior
opportunity or opportunities of observation or the details of any
such prior observation or the absence or the presence of
noticeable physical or facial features, marks or peculiarities, or
the clothing or other articles such as glasses, crutches or bag,
etc., connected with the person observed, and so on
[44] It is, in my view, clear from the above that primary facts or
evidence are facts established by direct sensory observation
and awareness13 of some kind by the witness. The reliability
of observation logically revolves around factors like the
opportunity to make such observation, the length thereof, the
visibility, the angle of observation, etc.
[45] Once a court has concluded, given the opportunity to make
the sensory observation, and the overall quality of the
observation, that the observation was indeed made an
accurate, such a testimony by witness becomes primary
evidence from which inferences can be drawn, factual
inferences drawn from such primary sensory
observations/awarenesses then become the basis for
secondary inferences.
[46] The following example illustrates the difference between the
two: if a witness one evening walks in from the street in front
of his house into his house, while it is raining such a witness
13See Mong v Director of Public Prosecutions and Another (17593/2018) [2019) ZA WCHC
116 (23 August 2019) in which the faculty of smell was the reason why two policemen started
to investigate a situation. See also S v Tai-Tai and Others (CC21/2020) [2023) ZAECMHC 16
(29 March 2023)
Page -17
sees, feels, and smells the rain. Consequently, the fact that it
was raining is established by way of primary evidence.
Contrast that with a situation where a witness sleeps through
the night and wakes up the following morning only to observe
that as far as he can see outside his house all the soil is wet
and he smells wet soil, he can draw the conclusion that it has
rained overnight. Such a fact is concluded by inference, in
other words, by observing his entire wet garden in the absence
of any other reasonable factor, the only reasonable inference
is that it was raining during the night. In this instance the fact
that it was raining is secondary evidence, and its probative
value is dependent on the primary facts on which it is based,
in the example the wet soil in the garden and the distinct all
over smell of the wet soil.
[47) Now if one returns with this scheme of thinking to the set of
facts in this case, it is immediately clear that the case of the
state is in its entirety based on primary evidence.
[48) There is one common cause fact, and that is the deceased
disappeared on 14 January 2006 and was never seen again.
Secondly, Gabriel described in detail how he, accused 1, 2
and 3 kidnapped the deceased in Soshanguve, drove him to
Seshego, and how he, Matome, and accused 1, 2 and 4
murdered the Deceased. In other words, in their testimony and
earlier statements they directly describe their own
Page -18
observations , even to the extent of their own participation in
the horrific murder. None of that is based on any inferential
evidential facts (secondary facts).
[49] Against this, the four accused did not place any exculpatory
evidence before court that can be assessed against the
backdrop of the totality of evidence. Accused 1, 2 and 4 simply
made the bald statement that the incident did not occur and
accused 3, who was implicated by Gabriel to be on the scene
of the initial kidnap and to initiate and assist with the kidnap,
simply had the defence of an alibi.
[50] The court a qua can consequently not be faulted with having
stated the following:
"It bears mentioning that the defence of Mr, Hlako, Mr
Makgatho and Mr Mabirimisa is that the incident described by
the state witnesses which includes driving from Polokwane to
Soshanguve and back as well as the incident at the home of
Mr Hlako where Ronnie was allegedly killed, never happened.
Put differently , the version by the three witnesses is nothing
but a fairy tale conjured up by them. There is therefore no
room in their defence that what was described actually
happened , but that they were not involved. The defence
therefore stands and falls on the acceptability and credibility
of the state witnesses ' accounts of the events."
[51] To put the statement of the court in other words: the state
witnesses' testimonies consist entirely of direct, primary,
evidence, in other words none of the facts that needed to be
proved for a conviction had to be proved by way of secondary
inferences , in which errors of logic and a misinterpretation of
Page -19
the probative value of such inferred facts can complicate the
assessment. Once it is determined that the state witnesses
were reliable and accurate, the conclusion is overwhelming: a
conviction must follow.
[52) Mr Mpshe submitted on behalf of the accused that the list of
discrepancies and contradictions by the state witnesses
destroy the state testimonies in their entirety, and that for that
reason the state failed to prove its case.
[53) I will now turn to one aspect which forms part of the attack of
the accused on the conclusion drawn by the court a qua.
[54) With regard to the testimony relating to the prophet, referred
to in paragraph 10 above, the Heads of Argument of the
accused states the following:
• The court a quo erred by accepting the evidence of
Gertrude in which the prophet pointed accused 2 out,
as the person that murdered the deceased . Mr Mpshe
argues that in the absence of testimony by the prophet
itself, this evidence is hearsay and should not have
been allowed.
• Gertrude was very reluctant to reveal the name of the
prophet, although she eventually revealed the name of
Page -20
the prophet to the court. This behaviour should have
caused doubt on her credibility.
[55] It is not exactly clear where Mr Mpshe aimed with the
interaction between Gertrude and the prophet, on appeal. One
can pick up some indication from remarks made by Mr Mpshe,
during the trial during cross examination of Gertrude:
"To sum it up, you were told, sorry, the Accused are before
court because what you were told by a prophet, am I correct"?
and
"Yes, now I am going to say to you, the prophet or information
from the prophet kickstarted everything , am I correct?"
and Gertrude then confirmed that the statement was correct.
[56] One must concede that the following situation is strange: a
person disappears in January 2006. Shortly thereafter, a
prophet identifies accused 2, who was living in Seshego, 250
km from Soshanguve where the disappearance took place, as
the person who killed the disappeared person.
[57] This communication of the prophet kickstarted the entire
investigation. Surely, is this the basis for starting an
investigation against accused 2 not highly suspect?
[58] In my view, if one assesses the entire record, the value of the
cautionary approaches described in Mafaladiso and van der
Meyden, becomes clear.
Page -21
[59] Firstly, the term "prophet" is not consistently translated in the
record. It is sometimes during interpretation interpreted as
"pastor." The two terms are used interchangeably during the
translation.
[60] Now the perception is that the basis on which a "prophet"
would point out a person as being the person who murdered
the deceased, more often than not, would be based on
superstition, and such a superstitious pointing out would have
no evidential value. On the other hand, a pastor's knowledge
of the crime perpetrated by another very often emanates from
a confession by such other person -and such a confession
can be highly relevant, and be the sole basis for a conviction
against an accused -See the case of Rethea Bierman v
State14("Bierman"). In fact, the case of Bierman is a vivid
illustration of an accused that tries to argue that the confession
made to a religious functionary, such as a reverend (or in this
case a pastor), should be privileged in terms of South African
law.
[61] Now this question of the identification of accused 2 by the
prophet/pastor, is not taken any further by either the state or
14 [2002] JOL 9860 (CC).
Page -22
the accused. That the state did not take it any further is
understandable in the light of what follows.
[62] Gertrude testified as follows, after having been asked by Mr
Mpshe, what she made of the communication of the prophet:
"I believed him and on the other hand I did not believe him
because right here we are talking of clashes of you can take it
as easy as like that being customaries, of customs. On the one
hand, in African Customs, you can take it as easy as like that
being evidence fully like that. But when we come to Court's of
law the expectation they differ from what normally we accept
as being fully evidence as Africans. "15
[63] Mr Mpshe then asked: "After this revelation you were ready to
go now to strengthen your evidence?."
[64] Gertrude then stated that the family members "secretly"
continued with their investigation, and she stated that her
search led them to her sister-in-law, one Sophie Mokwena.
She explained in cross examination"
"What happened was that my sister's motor vehicle was
stolen. I called her. Sympathising with her and I called her
frequently so she divulged to this information that Marcus sent
Gabriel Malti to come and steal a motor vehicle. I wanted to
enquire from her who exactly is this Gabriel Malti"
and she continued
"Then I wanted to know as to who Gabriel Malti is since when
has he been working together with this Marcus and that is
when she said that he has been with this Marcus for quite a
15 P. 30 record.
Page -23
while together with Joshua Hlako and others. Then I took it as
the breakthrough that we have been looking for."16
[65] Gertrude also testified that she, the deceased, and accused 2
and 3, were relatives, and were at the time of the incident
actually very close to one another. They are the children of her
paternal aunt.17
[66] Following on the question by the court she explained that the
entire family originates from "This province, that is after you
have passed Mat/a/a towards Stei/Joop that is where their
family originates from."
[67] On the question of the court "How was your relationship with
Marcus and Amanda prior to your brother's disappearance?,"
Gertrude answered "We were very close".
[68] The court then asked the question "Do you know Mr Hlako" to
which she answered, "/ just know that Hlako is a friend of
Marcus I just know him from the village."
[69] In my view, it is abundantly clear from the record that the
identities of Gertrude, the Deceased, and accused 1,2 and 3
are tightly woven together in a tapestry of evidence involving
familial ties and known acquaintances .
16 P. 31, record.
17 P. 38, record.
Page -24
[70] Given the aforesaid, there is no room to conclude that the
investigation and eventual court case were the result of a
superstitious pointing out of a prophet. To explore the
interactions Gertrude and the prophet, with a view to discredit
the state case, is to bark up the wrong tree.
[71] The first person that gave a statement confirming the murder
of the Deceased, in a way that implicates the four accused as
well as himself and one Matome, was Gabriel Matli.
[72] As indicated above, Gertrude's investigation led her to Gabriel
Matli. She located him and took him to the police station called
Vlag, a police station which is situated in Ga Matlala in order
to make a statement. That police station sent them to the
police station in Gilead, who in turn told them that the
statement should be reported in Pretoria. Gertrude and her
family then took Gabriel out of the province to Pretoria for his
own safety. 18
[73] Seroka testified that he was called during December 2021 by
the commander of the detectives, and the commander
indicated to him that he had an "enquiry file", and it transpired
eventually that this file came from the SAPS head office.
1 8 P. 24 record.
Page -25
[74] Seroka testified that he started to investigate the incident, that
he had an interview with Gertrude.
[75] Seroka testified that shortly after the interview, he received
instruction to proceed with the investigation of the incident .
He explained that eventually19 he phoned SAP members at
Akasia, and requested contact numbers of Gabriel, and they
provided the contact numbers to him.
[76] He eventually linked up with Gabriel in Pretoria, who told him
that he was hiding in Pretoria. Seroka then warned Gabriel in
terms of section 204 of the Criminal Procedure Act, to make a
statement, and explained the implications of Section 204 to
him. Gabriel made a statement, and in the statement
implicated Matome. This statement was made on 20 January
2022. Seroka also arranged for Gabriel to be taken up in a
witness protection program.
[77] Matome was also warned in terms of section 204 of the
criminal procedure act to make a statement regarding the
incident, by a certain officer Chauke at the Modimolle
correctional service facility. He also gave a statement
implicating Gabriel, accused 1,2 and 4 and himself in the
19 P. 429 record.
Page -26
murder of the Deceased . This statement was made on 12
April 2022.
[78] In my view, the totality of evidence establishes in a clear,
logical and cogent way where and how the investigation was
started and on what basis the four accused were eventually
arrested. The suggestion by Mr Mpshe during the trial that the
trial proceeded based on the pointing out by a "prophet" can
simply not be sustained.
[79] Since the entire state case revolved around the content of
Gabriel and Matome, the court had to pay particular attention
to statements of Gabriel and Matome.
[80] The court a quo made the following statement , with regard to
the remarkable corroboration between the two statements of
Gabriel and Matome regarding the entire incident:2°
" For Matome to be able to corroborate Gabriel's version that
he went to Soshanguve with Mr Hlaoko, he must have
obtained knowledge of Gabriel's version to that effect. He
could only have obtained this information from either Gabriel
already had first-hand knowledge of the event."
[81] In my view, this remark of the court a quo is applicable to the
entire testimonies of Gabriel and Matome.
[82] The court a quo stated as follows:
20 P. 874 record.
Page -27
"This court must next determine if Matome and Gabriel had
the opportunity of comparing their versions. "21
[83] The court remarked that the defence did not even suggest that
there was such a possibility and proceeded further to do a
thorough analysis of the question as to whether Gabriel and
Matome could have colluded with one another regarding the
content of their statements and testimonies. The court
concluded that it would have been highly improbable, even
impossible.
[84] The court a quo referred to the fact that Gertrude had a
discussion with Gabriel regarding the murder that took place.
Gertrude, however, did not have any discussion with Matome
(she did not even know him) and consequently Gertrude could
not have influenced Matome to tailor his testimony to the
content of Gabriel's testimony .
[85] It is clear from the sequence of events described above that
at the time that the two statements were made to Seroka and
officer Chauke, Gabriel and Matome could not have colluded
with one another regarding the content of their statements,
since the statements were taken four months apart and
Gabriel's statement was taken in Pretoria while the statement
of Matome was taken by officer Chauke in Modimolle.
21 P. 873.
Page -28
[86] Regarding the possibility that Gabriel and Matome could have
colluded with one another at an earlier stage, the court a quo
remarked as follows:
"It is in my view improbable that Gabriel and Matome
conspired in 2006, or thereafter, that if they were arrested in
future, they will implicate Mr Hlako, Mr Makgatho and Mr
Mabirimisa, the latter two, that is now Mr Makgatho and Mr.
Mabirimisa who were unknown to Matome.
Matome and Gabriel also corroborated each other's evidence
with regard to the notebook which Matome was required to
write the particulars of Ronnie. They also corroborated each
other as to the person who actually killed Ronnie. Matome
identified Mr Mabirimisa in court as the person who killed
Ronnie. Importantly, Mr Mabirimisa's defence was that he
never met Matome."
[87] In my view, the conclusion of the court a qua, viz that it is
highly improbable that Gabriel and Matome could either have
colluded with one another at the stage that their statements
were made or at any stage prior to that, cannot be faulted.
[88] I will now turn to some of the inconsistencies pointed out by
the accused in their heads of argument.
[89] Regarding that portion of the events when Gabriel and
accused 2 were on their way to Soshanguve, the Heads of
Argument states the following:
"On the issue of following the vehicle allegedly driven by
appellant 2. The initial evidence is that second appellant's car
came from the right and he, witness followed it. Later it
changed that the car (2nd appellant) came from behind."
Page -29
[90] Mr Mpshe does not explain what to make of this contradiction .
Does this contradiction destroy the basic narrative that the
vehicle in which he was driving and the vehicle of the second
appellant were together on the way to a house in
Soshanguve? And if this is Mr. Mpshe's submission , why does
he submit so? It should be borne in mind that this incident took
place 16 years prior to the testimony of Gabriel in court, and
this contradiction (even if it is found to be a contradiction of the
proper scrutiny of the record), is in my view nothing more than
an inaccuracy with no effect on the credibility of the version of
Gabriel.
[91] The heads also pointed to the following statement
contradiction:
"He testified that the appellant 2 got into his car but he does
not know who was the driver. In the same breath he testified
that appellant was the driver.
Recordvo/2pp 181 lines 14-21."
[92] I am unable to pick up from that portion of the record referred
to that Gabriel testified in the same breath that accused was
the driver and also not the driver. What Gabriel said was that
he did make an earlier statement in which he stated that
accused 2 got into the car but he did not see who the driver
was and he could not remember well.
Page -30
[93] Once again, does this lapse of memory by Gabriel, 16 years
after the incident to destroy the basic theme that there were
two vehicles involved in the kidnap of the deceased , the one
vehicle which he, Gabriel was driving, and the other vehicle
which accused no 2 was driving, alternatively in which he was
a passenger. The important factor is that Gabriel identifies
accused 2 as a person that was on the scene and was actively
involved in the kidnapping. I do not think that this inaccuracy
is material.
[94] Another example of an alleged inconsistency is this:
"Gabriel told the court in his evidence at the beginning that the
alleged unknown woman who allegedly helped put Ronnie
(deceased) into the car did not come with him to Seshego.
However, later on the cross examination he testifies that the
unknown woman was present in the shack where in the
alleged killing took place."
[95] A proper reading of the record casts doubt as to whether there
was indeed an inconsistency in the testimony of Gabriel.
Gabriel testified that when they arrived at the tin house in
Soshanguve, one Amanda (accused 3), who he recognised as
the mother of one Rico (and apparently he knew both of them
since they were local residents of ga Matlala where he comes
from) and an unknown lady emerged from the tin shack while
they were dragging an unstable and dizzy unknown male
person which later turned out to be the deceased. Accused 2
assisted the two ladies and put the deceased person in
Page -31
accused 2's car. Accused 2 thereafter indicated, that they
(that is Gabriel and accused 1) should proceed to Polokwane
while he was going to drop off accused 3. There is no mention
in the record that accused 2 was going to drop the unknown
lady off.
[96] Gabriel's testimony that he later saw that very same unknown
lady which he saw at Soshanguve being present at the scene
where they killed the Deceased cannot be said to contradict
any earlier testimony by him.
[97] It would serve no purpose to deal with each and every instance
of alleged contradiction in the testimonies of Gabriel and
Matome.
[98] In my view the general approach taken by the Appellants in
this case is untenable. What they did, was to generate a long
list of alleged inconsistencies and contradictions , and then rely
on the following generalised statements :
"The court misdirected itself by failing to attach consequences
to the contradictions and discrepancies improbabilities (sic)
in the state case"
and
"It is discomforting that the trial judge was aware of the
existence of discrepancies in the state's case but ignored the
same and convicted the appellants ."
Page -32
[99] There is no question of the court a quo having ignored
discrepancies in the evidence. The appellants complained
that the court a quo failed to attach consequences to
contradictions and discrepancies, yet the accused himself
failed to indicate in any accurate or credible manner what type
consequences should have been attached to which
contradictions and further to indicate that these contradictions
were material, destroying some of the essential primary
evidence before the court, or in some way destroying the
central theme of the testimony of both Gabriel and Matome.
[100] In my view, the court a quo correctly found, beyond reasonable
doubt, that the four accused were guilty of the charges is
judgement correctly convicted them.
[101] The notice of appeal states that appeal is noted against the
"conviction and orders" of the court a quo and it is not clear
whether the appeal is also noted against sentences.
[102] Be that as it may, the appellants did not make out any case
either the notice of appeal or their Heads of Argument to
interfere with the sentences.
[103] In my view therefore the appeal should be dismissed and that
on following order should is made"
"The Appeal is dismissed."
I concur, Page -33
~
ACTING JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
HE HIGH COURT,
e PO DIVISION,
LOKWANE
I concur, f P· PILLAY AJ
APPEARANCES:
Counsel for the Appellant:
Instructed by:
Counsel for the Respondent:
Instructed by:
Date heard:
Electronically circulated on: ACTING JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
Adv Mpshe SC
MM MANTHATAATTORNEYS
ADV JACOBS
DIRECTOR OF PUBLIC
PROSECUTIONS
22 November 2024
3D A-r" \ \ 7£27.fJ
Page -34