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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case no: K/S 26/2019
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the matter between:
MICHAEL PIETERSON Appellant
and
THE STATE Respondent
Coram: PHATSHOANE DJP, MAMOSEBO and NXUMALO JJ
Heard: 11/08/2025.
Delivered: 07/11/2025.
Summary: Criminal law – whether a c onviction on a count of murder and
obstructing the course of justice is sustainable – whether the search and seizure was
unlawful and evidence obtained therefrom inadmissible – whether a conviction on
obstructing the course of justice amounts to a duplication of convictions – and
whether substantial and compelling circumstances exist warranting a deviation from
the prescribed minimum sentence of life imprisonment.
ORDER
On appeal from the Northern Cape High Court, Kimberley, (Coetzee AJ sitting as the
court of first instance):
1. The appeal against the convictions in all three counts and sentences of life
imprisonment is dismissed.
JUDGMENT
Mamosebo J (Phatshoane DJP and Nxumalo J concurring)
[1] The appellant , Mr Pieterson, was convicted in this Court on two counts of
murder read with the provisions of s 51(1) of the Criminal Law Amendment
Act,1 as well as defeating or obstructing the course of justice by Coetzee AJ,
sitting as the court of first instance . He was sentenced to life imprisonment
on each count of murder and five years’ imprisonment for obstructing the
course of justice. This appeal, with leave of the trial court, is directed against
his convictions on all three counts and sentences of life imprisonment.
[2] The grounds of appeal are that the trial court erred:
1. in admitting the evidence of the search and seizure at the end of the
trial within a trial;
2. in finding that the circumstantial evidence was sufficient for a
conviction;
3. in not finding that the conviction in respect of count 3, namely,
obstructing the course of justice, amounts to a duplication of
convictions; and
4. in finding that there were no substantial and compelling circumstances
to warrant a deviation from imposing the prescribed minimum sentence
of life imprisonment on counts 1 and 2.
Evidence adduced by the State
1 105 of 1997.
[3] The deceased in count one was Ms K[...] M[...] (Ms M[...]), and the deceased
in count 2 was N[...] M[...] (N[...]), Ms M[...] and the appellant’s 11-month-old
son. There was no direct evidence on, or eyewitnesses to, the two counts of
murder. Doctor Lemainé Fouché, a Principal Forensic Pathologist,
conducted the post-mortem examinations on the two bodies on 13 May 2019
and compiled separate reports. Her qualifications and experience were not
challenged.
[4] The first body was identified as Ms M[...]’s. She had incised wounds caused
by a sharp instrument above her left eye, on the f ront of her left shoulder
above her breast, and on the front of her right hip. The incised wound on the
front fascia illiaca caused the small bowel to protrude and to bleed. The body
had a cooked appearance , with skin splitting on the front of her left breast,
the left side of the abdomen and the front of the right upper leg. The front of
the head, neck and torso (chest, abdomen, arms and legs) were covered in
burns. The sku ll had extensive under scalp haemorrhages (bleeding) over
the frontal and occipital bones, that is, there was bleeding inside the skull ,
most likely caused by the incised wound above the left eye. There was a
fracture stretching into the left parietal bone, which could have been caused
by a hard blunt object or taki ng the head and hitting it against a hard object.
The brain was swollen. The tongue was bitten between the two front teeth,
and the epiglottis was swollen and red due to the inhalation of warm air. The
trachea was erythematous with sloughing of the mucou s membrane of the
upper trachea. The doctor concluded that the deceased was alive when she
sustained all these injuries and inhaled the hot air prior to being burnt. Dr
Fouché took a blood sample from the deceased and marked it under seal
number DD450790 and handed it to the investigating officer, Cst ZP
Maqwevo. The death of the deceased was caused by a head injury and
smoke inhalation.
Maqwevo. The death of the deceased was caused by a head injury and
smoke inhalation.
[5] The second post -mortem examination was conducted on the same day on
the body identified as N[...]’s. There were burns covering the right side of the
face and the back of the head as well as burns in different shapes and sizes
on the torso, legs and right hand; an incised wound on the frontal bone
above the left eye as well as a penetrating incised wound through the left
frontal bone into the left anterior cranial fascia; an abrasion on the left cheek
and the frontal bone above the right eye ; and an under scalp haemorrhage
on the left frontal bone. According to Dr Fouch é, the stab wound just above
the left eye penetrated until just before the brain. N[...]’s brain was
microscopically swollen. The doctor opined that N[...] was already deceased
when the fire was set. The cause of N[...]’s death according to the doctor
was a stab wound to the face above the left eye.
[6] Ms Dora S[...] is Ms M[...]’s foster mother. On the afternoon of 07 May 2019,
four days before the tragedy , the appellant informed her that a certain police
constable had advised him to return to court on Thursday , when the
Magistrate would be available, to apply for guardianship (must have meant
custody) of his child. She advised him that no court would grant him such an
order as the child was still being breastfed . His response was thus , ‘if he
cannot get his child , then nobody would because another man will not raise
his child’. He added that he would rather kill them both and set them on fire.
Ms S[...] warned him about the consequences that he might face . H e left.
She described the relationship between the appellant and the deceased as
toxic, especially after the birth of N[...].
[7] Mr George Mosia Vos (Mr Vos) was walking to Holpan on Sunday, 12 May
2019, just after 08:00 in the morning , when he noticed that the footpath had
been swept. He turned his head to the right and noticed ash. He went closer
and saw crossed legs of a human being. He reported to Capt. Sam Brown ,
who immedi ately summoned other police officials and took them to the
scene. The distance between the swept area and where Mr Vos stood and
the distance between the swept area and the deceased’s feet were about 2
meters, respectively.
meters, respectively.
[8] Ms M[...] was Ms E[...] M[...] M[...] ’s (Ms M[...]) niece. Ms M[...] and the
appellant were in a relationship described by Ms M[...] as stormy or
tempestuous. It is common cause that Ms M[...] and the appellant went to Ms
M[...]’s home the evening of Saturday, 11 May 2019. Ms M[...] went there to
look for her sister, Ms L[...] M[...], who held N[...] at the time. According to Ms
M[...], as the appellant professed his love for Ms M[...], Ms M[...] stopped him
and scolded him, stating that if he really loved Ms M[...], she would not have
had a blue eye and a swollen mouth. Ms M[...]’s foot was also swollen from
being hit by the appellant with a five -pound hammer , continued Ms M[...],
who also testified that she told the appellant that what he felt for Ms M[...]
was not love but obsession. Further, Ms M[...] had told Ms M[...] in the
presence of the appellant that she did not want to be in a relationship with
him anymore and will not even go to his shack because he would kill her. To
this, the appellant said: ‘ This woman does not want me anymore ’; and
moved away from the door where he had been standing. They were alerted
by Ms M[...]’s son that he was still outside.
[9] Ms M[...] proceeded to testify , stating that s hortly thereafter, Ms L[...] M[...],
her brother and N[...] arrived. Ms M[...] and her husband later escorted Ms
M[...] and N[...] and parted from them when they were about 25 paces from
reaching their home , where Ms M[...] stayed with her siblings and their
children. Ms M[...] further testified that s he and her husband were unaware
of the appellant’s whereabouts when they escorted Ms M[...] and N[...] home.
That was the last time Ms M[...] saw both the deceased alive. Ms M[...] was
carrying N[...] on her back, wrapped in a pink towel. Ms M[...] was wearing a
black hat, a white windbreaker jacket and black shorts with blue toe sandals.
N[...] wore a red jacket with blue shorts and blue sandals.
[10] On Mother’s Day , 12 May 2019, Ms M[...], as planned, was expecting Ms
M[...] to visit her but she never showed up. Instead, Ms M[...]’s sister, K[...],
arrived enquiring about Ms M[...]’s whereabouts. Ms M[...] joined K[...] in the
arrived enquiring about Ms M[...]’s whereabouts. Ms M[...] joined K[...] in the
search for Ms M[...] and N[...]. They started at the appellant’s place and
found him in the company of his friend, Mr Rodger Baker. On enquiry , he
claimed to have left Ms M[...] at Ms M[...]’s place the previous night and said
that they were safe there. In search of the deceased , K[...] and Ms M[...]
went to Ms S[...]’s home and she told them that she last saw the deceased
on 07 May 2019 and related to them the ominous threat and rumours of the
death of a woman and a child. At that stage, Mr Vos had already contacted
Ms M[...]’s husband, informing him that he had observed burnt bodies of a
woman and a child , and the police were at that crime scene. Ms M[...] and
K[...] returned to Ms M[...]’s home and called the police to report the
deceased as missing persons.
[11] Constables Marwin Olivier, Kagiso Seele and Tshobeng attend ed to Ms
M[...]’s complaint. Two of the three constables, Olivier and Seele, testified.
Their evidence in brief was that as they were gathering information from Ms
M[...], the appellant arrived and interrupted their engagement with Ms M[...].
They, at that stage, regarded him as the second complainant because while
speaking to Ms M[...], Sgt Mothudi , their shift Commander, contacted them
and reported that the boyfriend had called the police station with information
pertaining to the missing persons. Cst Olivier alerted Sgt Mothudi that the
boyfriend was with them at Ms M[...]’s place. Cst Olivier was then contacted
by Capt John Chris Seeley by radio and asked to bring the appellant to the
main road R374 for more information, which he did. They met Capt Seeley
on the side of the road. Capt Seeley spoke to the appellant through an open
window, seeking his permission to search his premises, which he granted.
[12] Shortly after Capt Seeley had commenced his testimony , the defence raised
an objection regarding the admissibility of the evidence obtained during the
search and seizure at the appellant’s premises. A trial within a trial was
instituted to determine the admissibility thereof.
[13] Capt Seeley explained that he consulted the appellant at the R374, enquiring
from him whether he would object to them attending his premises to search
for a possible shoe track similar to the one found at the veld next to the
bodies, and also to do so based on information received. He was warned
that it was suspected that he could be involved in the alleged incident. The
that it was suspected that he could be involved in the alleged incident. The
appellant consented. At his home, while the appellant was still in the police
vehicle, Capt Seeley searched his yard for the possible shoe track. He
explained that he did not take the appellant with him at that stage because
that would have caused leaving his foot tracks in the yard and contaminate
the scene . Capt Seeley found tracks in the yard as well as in the main
entrance of the appellant’s residence and requested Cst Tebogo Malgas,
attached to the Hartswater Local Criminal Record Centre (LCRC), to take
photographs of the shoe tracks. Thereafter Capt Seeley explained to the
appellant what they had done and discovered. Capt Seeley walked with him
to the door of the shack which the appellant unlocked himself.
[14] Capt Seeley observed that the floor of the shack was waterlogged. Behind
the door but inside the shack was a washing line from which hung a blue -
coloured jacket, a blue T -shirt, and a pair of blue track pants which were still
wet. Capt Seeley further observed that there was blood on some clothing
items. Cst Malgas took photographs thereof and collected them for forensic
analysis. Behind the shack they found a pair of All Star tekkies on top of the
roof which was also wet. Cst Malgas also photographed the pa ir and
packaged it. Capt Seeley denied assaulting or threatening to kill the
appellant or witnessing any of the other officials assaulting him. He added
that had the app ellant withheld his consent to search his premises he would
have cordoned off his premises and posted police officials there whilst
launching a formal application for a search and seizure warrant which he
believed would have been granted.
[15] Cst Malgas’ role, as a photographer and LCRC member, was to properly
process the scenes where the bodies were recovered in the veld as well as
at the appellant’s premises and also to collect exhibits. He also denies that
any assault on the appellant took place in his presence. On 15 May 2019 , he
handed the exhibits over to the investigating officer, Cst Samuel Raymond
Mqwevu, for forensic science analysis. Cst Mqwevu took one big forensic
bag which contained all the collected clothing items of the appellant and one
small bag which contained Ms M[...]’s blood sample.
small bag which contained Ms M[...]’s blood sample.
[16] At the time of testifying , W/O Mitchell was already a retired SAPS member
having served 29 years . He was off duty on 12 May 2019 when Ms M[...]
telephonically reported the deceased missing. He met Olivier, Seele and
Tshobeng in a marked police double cab bakkie and joined them. W/O
Mitchell contacted Capt Seeley, who was already at the scene. He confirmed
that Capt Seeley spoke to the appellant who gave him permission to search
his premises. W/O Mitchell boarded Capt Seeley’s vehicle to the appellant’s
shack. The premises were immediately cordoned off. W/O Mitchell did not
enter the premises but remained outside the cordon. W/O Mitchell
maintained that when the appellant was questioned, he was not yet a
suspect. However, as soon as it became apparent that he was a suspect , he
was handcuffed.
[17] W/O Tshepiso Maria Malatsie is a forensic analyst responsible for
performing presumptive testing on evidence provided in forensic bags
containing biological material. She compiled an affidavit in terms of s 212(4)
of the Criminal Procedure Act 2 (“CPA”). She received one sealed evidence
bag which contained a blood alcohol collection kit containing one liquid blood
sample. It was in her safekeeping from the date of receipt until completion of
testing. She transferred the liquid blood onto the blood collection card, let it
dry, then placed it in an envelope, marked it and placed it in the case file.
[18] W/O Sibonelo PraiseGod Ngcoya is attached to the F orensic Science
Laboratory, Pretoria, as a Forensic Analyst in evidence recovery. He also
compiled an affidavit in terms of s 212(4) of the CPA. On 27 May 2019, he
received the sealed bags specified in his affidavit. His focus was mainly
directed at the sealed evidence bag containing the appellant’s blue T -shirt.
He broke its seal and took out the exhibit for analysis. He laid the exhibit on
a properly disinfected bench, whereafter he observed a stain on the front left
part of the T-shirt, which tested positive for blood. Thereafter, the docket was
handed over to the administration component for DNA testing.
[19] Capt Regina Cecilia Janse van Rensburg, a Senior Forensic Analyst
stationed at the biology section of the FSL in Pretoria, interpreted the DNA
stationed at the biology section of the FSL in Pretoria, interpreted the DNA
received and compiled a report together with an affidavit in terms of s 212 of
the CPA. Capt van Rensburg analysed the specified T-shirt and obtained a
2 51 of 1977.
female DNA result from th e bloodstain. Simply put, the blood on the T -shirt
came from the deceased ( Ms M[...]). The same DNA result was found on a
rock marked exh D in exhibit bag PA60033892406, a rock in exhibit bag
PA4001897528, and a swab marked exh A from kit 13DCAD5367 sealed in
evidence bag PA4001867498. An attempt was made to cas t doubt o n
whether the stain on the T -shirt was blood or could have been skin cells , a
possibility that Capt van Rensburg persuasively ruled out.
[20] I do not deem it necessary to deal with the evidence of Colonel Kate Simon,
a quality manager at the biology section of FSL, whose evidence was solely
led after the challenge of the accreditation of the FSL by the South African
National Accreditation System (SANAS). This aspect was not argued before
us, correctly so, I should add.
Evidence adduced by the defence
[21] The appellant admitted that Ms M[...] was his girlfriend since 2017 and they
cohabited until around April 2019. Further that N[...] was his son. He testified
that he last had contact with both deceased on 11 May 2019 when he left
them at Ms M[...]’s place. Ms M[...] asked h im to accompany her to Ms
M[...]’s place because she was looking for her son , who was with her sister.
Ms M[...] told the appellant that he is an unemployed jailbird and if he
continues seeing the deceased, she will make sure he returns where he
came from. He told the deceased to fetch her phone from him the following
day. He left both deceased at Ms M[...]’s place and never saw them again.
[22] Later the following morning, Ms M[...] and K[...] looked for the deceased at
the appellant’s home. He denied knowledge of their whereabouts. Ms M[...]
informed him of two dead bodies found in the veld. He called the police in
relation to the two dead bodies, and they informed him that they would come
to his place. Subsequently , he saw the police at Ms M[...]’s place and went
there. He had just washed the dirty clothes discovered by the police inside
there. He had just washed the dirty clothes discovered by the police inside
his shack , as well as the pair of tekkies they retrieved from the roof. He
denied having a conversation with Ms S[...] in which he threatened to kill and
burn the deceased. According to him, he told Ms S[...] that he was returnin g
from the police station where he had deposed to an affidavit for a lost birth
certificate. He denie d killing both the deceased. In his evidence -in-chief, he
disputed that his seized T -shirt had the deceased’s blood on it. However, in
cross-examination, he conceded that if that is what the professionals say ,
then he concedes. He conceded that it was the very same wet T-shirt seized
by the police that had the deceased’s blood on it. He could not explain how
the deceased’s blood ended up on his T -shirt. He also conceded that the
shoe track found at the scene , where the bodies were recovered , matched
that of an All Star tekkie and that a wet pair of black All Star tekkie s was
recovered from the roof of his shack. He denied that his shoeprint was found
at the scene where the bodies were recovered.
Search and seizure
[23] The question to be answered under this head ing is whether the search and
seizure was with the appellant ’s consent; and if not , whether the evidence
obtained is admissible nonetheless?
[24] A point was taken that the trial court has not furnished any reasons for
admitting the evidence in question. This is what the trial court pronounced in
respect of the trial within a trial:
‘This is a ruling that I have got to make [in] a trial within a trial. I do not intend
giving any reasons for the finding as reasons therefor e will be given if
necessary at a later stage. I rule as follows: The evidence of the search and
seizure is allowed.’3
Despite the provisions of s 146 of the CPA necessitating the provision of
reasons by superior courts in criminal trials, 4 the trial court omitted to furnish
3 Record, volume 3 at 203, line 2 – 6.
4 Botes and Another v Nedbank Ltd 1983 (3) SA 27 (A); S v Immelman 1978 (3) SA 726 (A) at 729A –
C.
its reasons in this regard. Under the circumstances, the appeal court must
consider the admissibility of the evidence afresh.5
[25] It is common cause that the police’s search and seizure wherein the real
evidence was obtained was without a search warrant. However, while there
seems to have been various communication s between different police
officials to varying degree s of the knowledge and involvement of others, the
police officials corroborated each other and were consistent in maintaining
that the appellant had granted Capt Seeley permission to search the
premises. Capt Seeley e xplained that had the appella nt withheld his
consent, he would have invoked s 22 of the CPA maintaining that he
believed a search warrant would have been issued to him upon application
thereof given the seriousness of the case.
[26] The appellant on the other hand testified that the police did not seek his
permission to search his premises , and that had they done so, he would
have consented. He further testified that the police officials assaulted him
during the search, implying coercion. However, the evidence points to the
contrary. There is no evidence that the appellant was coerced to consent to
the search or provide the information to the police. Evidently, he initiated his
involvement by calling the police station and reporting the missing persons
and joining the search by the police and Ms M[...] when the investigation was
initiated. Furthermore, the appellant did not express any dissatisfaction with
the search conducted at his premises. I therefore accept that the appellant
had granted the police permission to search his premises.
[27] Further, the appellant’s attorney, Mr Steynberg, conceded that it would not
necessarily follow that , absent his consent, the evidence should be
excluded. Assuming in favour of the appellant that he had not consented to
the search and seizure, the question wh ether the evidence is admissible
nonetheless is dealt with below.
nonetheless is dealt with below.
5 S v Masuku and Others 1985 (3) SA 908 (A) at 912D – I.
[28] The Supreme Court of Appeal (SCA) remarked in Director of Public
Prosecutions, Gauteng Division v Thato Molefe and Another 6 (“Molefe”) that
our courts have tended towards the Canadian approach where the decision
to admit improperly obtained evidence was left largely to the discretion of the
judge, taking into account the individual facts of the case. The SCA
proceeded to state that our Constitution7 has since codified the South African
approach on this issue. Section 35 (5) of the Constitution stipulates:
‘Evidence obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would render the trial
unfair or otherwise be detrimental to the administration of justice.’
[29] The Constitutional Court in Key v Attorney -General, Cape Provincial
Division, and Another8 insightfully pronounced:
‘In any democratic criminal justice system there is a tension between, on the
one hand, the public interest in bringing criminals to boo k and, on the other,
the equally great public interest in ensuring that justice is manifestly done to
all, even those suspected of conduct which would put them beyond the pale.
To be sure, a prominent feature of that tension is the universal and
unceasing endeavour by international human rights bodies, enlightened
legislatures and courts to prevent or curtail excessive zeal by State agencies
in the prevention, investigation or prosecution of crime. But none of that
means sympathy for crime and its per petrators. Nor does it mean a
predilection for technical niceties and ingenious legal stratagems. What the
Constitution demands is that the accused be given a fair trial. Ultimately, as
was held in Ferreira v Levin , fairness is an issue which has to be decided
upon the facts of each case, and the trial Judge is the person best placed to
take that decision. At times fairness might require that evidence
unconstitutionally obtained be excluded. But there will also be times when
unconstitutionally obtained be excluded. But there will also be times when
6 (417/2024) [2025] ZASCA 67 (26 May 2025) para 12.
7 The Constitution of the Republic of South Africa, 1996.
8 1996 (2) SACR 113 (CC) paras 13 and 14.
fairness will require that evidence, albeit obtained unconstitutionally,
nevertheless be admitted.
If the evidence to which the applicant objects is tendered in criminal
proceedings against him, he will be entitled at that stage to raise objecti ons
to its admissibility. It will then be for the trial Judge to decide whether the
circumstances are such that fairness requires the evidence to be excluded. It
follows that the applicant is not entitled to an order from this Court in these
proceedings th at the evidence secured as a result of the searches and
seizures will be inadmissible in criminal proceedings against him . Insofar as
the decision in Park-Ross is inconsistent with this conclusion, it must be
taken to be incorrect.’
[30] In Molefe the SCA, r ecognising the tension in respect of the Bill of Rights
and the judicial process, remarked:
‘… Courts more readily received improperly obtained evidence, which was
real evidence, in the form of tangible objects. As this Court stated in S v
Mthembu [2008 (2) SACR 407 (SCA) para 22]:
“The reason was that such evidence usually bore the hallmark of objective
reality compared with narrative testimony that depends on the say -so of a
witness. Real evidence is an object which, upon proper identification,
becomes, of itself, evidence….”’9
[31] I conclude that the evidence is admissible as evidence obtained in violation
of the Bill of Rights can only be excluded where (i) the trial will be unfair if the
evidence were to be admitted; or (ii) it would be detrimental to the
administration of justice. Regard being had to the authorities cited above and
the objective facts of what transpired at the appellant’s premises, I am
satisfied that admission of this evidence neither rendered the trial unfair nor
was it detrimental to the administration of justice. The appellant’s concession
9 Supra fn 7 para 16.
that he would have granted the police permission anyway tips the scale to a
finding that the admission of the evidence in question did not result in the
violation of his rights to a fair trial.
Circumstantial evidence
[32] There was no direct evidence on, or an eyewitness to the killing of Ms M[...]
and N[...]. Mr Steynberg , for the appellant , contended that but for the
admission of the DNA found on his T -shirt, there would not have been a
conviction. He argued this aspect in his heads as follows: the presence of
DNA is circumstantial evidence and the court should have used inferential
reasoning to come to its conclusion, having regard to all the evidence,
especially that of the appellant.
[33] A vital item of part of the circumstantial evidence correctly admitted by the
trial court was the deceased’s DNA (her blood) that was confirmed by the
forensic evidence to have been found on the appellant’s T -shirt seized from
his residence during the search and seizure. It was common cause that the
T-shirt was his, and he failed to explain to the trial court how the deceased’s
blood was found on it.
[34] It is also common cause that a presumptive test conducted at the forensic
laboratory tested positive for blood. The appell ant, instead, contended that
there was a reasonable doubt whether it could have been there due to skin
cells. This contention holds no water in light of the explanation provided by
Capt van Rensburg to the trial court, to this effect:10
‘It is not just one skin cell, the court needs to please understand merely
touch DNA is not going to do the trick. So if I touch the bench or I lift my
hand or I just touch my jacket it does not accumulate enough DNA to
actually yield a result based on the chemistry used at the la boratory. … a
serious amount of skin cell for a lot of use accumulate and touch an amount
10 Record, volume 3 at 247, line 4 – 12.
to actually obtain a result. So, in my opinion, it is definitely blood, it is not
skin cells.’ (sic)
[35] Notwithstanding that there was no direct evidence linking the appellant to the
commission of these offences, the rules of logic in R v Blom 11 (“Blom”)
dictate that the inference sought to be drawn must be consistent with the
proven facts and it must be the only reasonable inference to be drawn. The
principle was followed in S v Reddy and Others 12 (“Reddy”) where the
approach in assessing circumstantial evidence was found to be this:
‘In assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece -meal basis and to subject each
individual piece of evidence to a consideration of whether it excludes the
reasonable possibility that the explanation given by an accused is true. The
evidence needs to be considered in its totality. It is only then that one can
apply the oft -quoted dictum in R v Blom 1939 AD 188 at 202 -3, where
reference is made to two cardinal rules of logic which cannot be ignored.
These are, firstly, that the inference sought to be drawn must be consistent
with all the proved facts and, secondly, the proved facts should be such “that
they exclude every reasonable i nference from them save the one sought to
be drawn”. The matter is well put in the following remarks of Davis AJA in R
v De Villiers 1944 AD 493 at 508-9:
“The Court must not take each circumstance separately and give the
accused the benefit of any reasonable doubt as to the inference to be drawn
from each one so taken. It must carefully weigh the cumulative effect of all of
them together, and it is only after it has done so that the accused is entitled
to the benefit of any reasonable doubt which it may have as to whether the
inference of guilt is the only inference which can reasonably be drawn. To
put the matter in another way; the Crown must satisfy the Court, not that
each separate fact is inconsistent with the innocence of the accused, but that
each separate fact is inconsistent with the innocence of the accused, but that
11 1939 AD 188.
12 1996 (2) SACR 1 (A) at 8C – I.
the evidence as a whole is beyond reasonable doubt inconsistent with such
innocence.”
Best on Evidence 10th ed 297 at 261 puts the matter thus:
“The elements, or links, which compose a chain of presumptive proof, are
certain moral and physical coincidences, which individually indicate the
principal fact; and the probative force of the whole depends on the number,
weight, independence, and consistency of those elementary circumstances.
A number of circumstances, each individually very slight, may so tally with
and confirm each other as to leave no room for doubt of the fact which they
tend to establish. … Not to speak of greater numbers, even two articles of
circumstantial evidence, though each taken by itself weigh but as a feather,
join them together, you will find them pressing on a delinquent with the
weight of a mill-stone…”’
[36] The following are the individual circumstances which, when put together ,
confirm each other, leaving no room for doubt. The evidence is like joining
together different pieces of a jigsaw puzzle to complete the mosaic:
36.1 The appellant was placed at Ms S[...]’s place a few days before the
murders, and although he denies the content of the conversation, his
death threats , as alleged by the foster mother (Ms S[...]) whose
version is reliable , cannot be ignored . Both Ms S[...] and Ms M[...]
describe the deceased and appellant’s relationship as tempestuous;
36.2 He was at Ms M[...]’s place the night of the disappearance of the
deceased, and that happened when Ms M[...] and her husband
returned to their own home , having escorted the deceased to within
25 paces of their own home;
36.3 There is no evidence of a fight or violence that happened that could
have caused Ms M[...]’s blood to be spluttered while she was in Ms
M[...] and the appellant’s presence;
36.4 According to Ms M[...], Ms M[...] refused the invitation by the
appellant to fetch her phone from his home, fearing that he would kill
her;
36.5 It is common cause that the appellant and Ms M[...] shared a son,
N[...], and both Ms M[...] and N[...] were mysteriously found dead
after being with the appellant at Ms M[...]’s place that night;
36.6 All Star tekkies’ tracks were found next to the dead bodies. Similar
tracks were found on the premises and close to the entrance of the
appellant’s home. It is also not in dispute that a pair of All Star
tekkies were recovered on the roof of the appellant’s shack, washed
and wet. This piece of evidence on its own weighs like a feather , but
considered with the other pieces of evidence , it presses heavily on
the appellant; and
36.7 The blood which was found on the appellant’s washed T -shirt, was
confirmed through a presumptive test and DNA by the forensic
experts, to be that of the deceased . He was unable to explain how
her blood had ended up on his T-shirt if he had parted ways with her
at Ms M[...]’s place and never saw her again.
[37] If one applies the well-known principles encapsulated in Blom and Reddy to
the evidence set out above, there can be no doubt in reaching the
conclusion that the denial by the appellant of any involvement in the killing of
Ms M[...] and N[...] is palpably false. The trial court was therefore correct in
rejecting his defence. The evidence shows that the appellant was bent on
having the custody of his son , failing which he would kill the mother and his
son, as no one, in his view, was fit to raise his son for him. The trial court
was correct to convict the appellant on both counts of murder based on the
circumstantial evidence. Circumstantial evidence, as in this case, can be
more reliable than eye-witness testimony.
Was count 3 a duplication of convictions?
[38] Mr Steynberg submitted that there was a duplication of convictions in respect
of the third count of obstructing the course of justice. He alluded to these
remarks by the trial court:
‘This submission can only relate to Me M[...]. As the causes of her death was
undisputed, were a head injury and smoke inhalation. I am therefore of the
view that this submission is correct. Child M[...]’s death was caused by a
facial stab which is indicative therefore that the accused burned and
concealed her body.’13 (sic)
The argument was that there is no evidence of two separate burnings as the
head and upper part of N[...]’s body was below Ms M[...]’s head and
shoulders when they were set alight as depicted on photos 14 and 15 of Exh
C. There was therefore a single intent , meaning, it cannot be that there was
duplication in relation to N[...] and not Ms M[...], argued Mr Steynberg.
[39] The appellant’s reliance on the trial court’s finding/ruling does not take his
case any further because this Court takes a different view. The trite principle
enunciated by the Appellate Division in Rex v Dhlumayo and Another 14 is
that, while an appeal court’s interference with the findings of a trial court is
limited, it can interfere where it is satisfied that the trial court erred . That the
trial court erred on the aspect of duplication is demonstrated below.
[40] In S v Dlamini ,15 considering whether there has been a duplication of
convictions on the charges, the SCA pronounced:
‘The single intent and continuous transaction test, as applied to an enquiry
regarding the improper duplication of convictions, has already been
13 Record, volume 7 at 507, line 17 – 23.
14 1948 (2) SA 677 (A) at 705 – 706.
15 2012 (2) SACR 1 (SCA) para 54.
discussed above. Another test is the enquiry whether the evidence
necessary to establish one crime involves proving another crime…’
In the application of the abovementioned test s, the true intention of the
accused must be inferred from the circumstances surrounding the
commission of the offences and the available evidence.16
[41] First, the evidence required to prove murder, and the elements thereto , are
not the same as the elements required to establish the offence of defeating
the course of justice. Second, in light of the evidence adduced, the appellant
must have thought that he had stabbed and killed Ms M[...] and N[...]. It can
be reasonably inferred that he subsequently burnt their bodies to destroy the
evidence. I hasten to add that the appellant was well aware that the accusing
finger to the effect that he perpetrated these crimes would firmly point at him.
He therefore endeavoured to avoid taking responsibility or accountabil ity for
the deceased’s’ deaths by burning their bodies. Accordingly, t he argument
on duplication is misplaced and not supported by the facts in both instances.
The trial court was therefore correct to convict the appellant on count 3 as
well, albeit incorrectly holding that the count applies only to N[...]’s body.
Are there substantial and compelling circumstances to warrant a deviation from the
prescribed minimum sentence of life imprisonment on counts 1 and 2?
[42] The relevant provisions of the Criminal Law Amendmen t Act 17 bear
repeating:
‘51 Discretionary minimum sentences for certain serious offences
(1) Notwithstanding any other law, but subject to subsections (3)
and (6), a regional court or a High Court shall sentence a
person it has convicted of an offence referred to in Part I of
Schedule 2 to imprisonment for life.
(2) …
16 Ibid at 14E.
17 Supra fn 1.
(3) (a) If any court referred to in subsection (1) or (2) is satisfied
that substantial and compelling circumstances exist which
justify the imposition of a lesser sentence than the sentence
prescribed in those subsections, it shall enter those
circumstances on the record of the proceedings and must
thereupon impose such lesser sentence…’
[43] It is trite that sentencing is primarily in the discretion of the trial court. A court
of appeal may only intervene when there is an irregularity or where the trial
court made a grave error or where the sentence is shocking and
inappropriate.18 Further, where the trial court imposed a prescribed minimum
sentence, the approach on appeal is whether or not the facts that were
considered by the trial court are indeed substantial and compelling.19
[44] We take cue from the trite principles in S v Malgas 20 and S v Vilakazi 21
regarding the determinative test , in considering whether substantial and
compelling circumstances exist to warrant a deviation from the prescribed
minimum sentences. These are the appellant’s personal and mitigating
factors: He was 36 years old at the time of sentencing and 35 years old at
the time of the commission of the offences. He is single with three children
aged 19, 14 and three years. He completed Grade 12 whilst serving a
sentence of 20 years imprisonment (murder) for which he was convicted on
13 November 2006. He continued to improve his life skills by completing
courses in boiler-making, computer literacy and woodwork. He was released
on parole on 29 September 2016. He was in gainful employment as a builder
and earned between R8000 and R9000 per month. He was arrested on
12 May 2019 for the current murder s. His parole was revoked and has
continued to serve his 20 year -sentence since 10 October 2019. He was in
custody awaiting trial for five months. It was contended on his behalf that the
Court should perceive him as a person willing to develop himself. He has
Court should perceive him as a person willing to develop himself. He has
18 S v Pieters 1987 (3) SA 717 (A) at 728B – C; Director of Public Prosecutions, Grahamstown v Peli
[2018] JOL 40195 (SCA) para 7; S v Hewitt 2017 (1) SACR 309 (SCA) para 8.
19 S v PB 2013 (2) SACR 533 (SCA) para 20.
20 2001 (1) SACR 469 (SCA) para 25.
21 2012 (6) SA 353 (SCA) para 18.
also completed the anger management course. It was further submitted that
he is a suitable candidate for rehabilitation , and imprisonment for life would
defeat that purpose , as he would have to spend the rest of his life
imprisoned. It was urged upon the Court to accept that , cumulatively
considered, the appellant’s personal and mitigating circumstances are
substantial and compelling , warranting a deviation from the prescribed
sentence of life imprisonment.
[45] These are the aggravating factors. The State proved the following previous
convictions, which the appellant admitted. On 11 February 2004 , he was
convicted of housebreaking with intent to steal and theft , and was sentenced
to three months’ imprisonment, which was wholly suspended for three years.
On 13 November 2006 , he was convicted of murder and sentenced to
20 years imprisonment; housebreaking with intent to rape and rape ; as well
as attempted rape and was sentenced to ten years imprisonment. The latter
sentence was ordered to run concurrently with the 20 years sentence for
murder. The appellant only served 10 of the 20 years imprisonment term as
he was released on parole on 29 September 2016. His parole term was
supposed to run until 29 May 2026, but was revoked because he reoffended.
[46] The relationship that ought to have been one of trust ended up as toxic and
tumultuous. The killing of the deceased was callous and gruesome because
they were defenceless. Their lifeless charred bodies as depicted on the
photos, are too ghastly to view. It is in such circumstances where the
personal circumstances of the appellant must recede to the background.
Clearly, this Court must maintain that tension and balance between the
rights and interests of the appellant and those of the deceased. Sentencing
must also be victim-centred.22
[47] Our country is plagued by the scourge of gender -based violence. Ms M[...]
was stabbed several times before being burnt alive. Needless to say, it
was stabbed several times before being burnt alive. Needless to say, it
matters not that the appellant thought she was already dead, for that takes
22 S v Matyityi 2011 (1) SACR 40 (SCA) para 16.
nothing away from the excruciati ng pain she must have suffered . Her 11 -
month-old baby was also gruesomely stabbed to death. Their rights to life,
dignity, privacy and integrity were cruelly taken away from them. The society
demands that the courts must protect its vulnerable members . This is a
suitable case where deterrence and retribution must take preference over
rehabilitation. The appellant has shown no remorse whatsoever. Evidently,
he has carried out his assaults on Ms M[...] throughout the time they ha d
lived together , without any repercussions. Ms M[...] and Ms S[...] bear
testimony to that relationship. Having regard to the adduced evidence, the
appellant’s personal circumstances, the mitigating and aggravating
circumstances, I am satisfied that there are no substantial and compelling
circumstances warranting a deviation from the prescribed minimum sentence
of life imprisonment on each count of murder as imposed by the trial court.
Life imprisonment is not disproportionate under the circumstances and
finding otherwise would amount to maudlin sympathy.
[48] There is no reason to interfere with the convictions and sentences imposed ,
accordingly, the following order is made:
1. The appeal against the convictions in all three counts and sentences
of life imprisonment is dismissed.
MC MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
For the appellant Mr H Steynberg
Instructed by: Legal Aid South Africa, Kimberley
For the respondent: Adv. R Makhaga
Instructed by: The Director of Public Prosecutions.