IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION – MAHIKENG
Case No: CA 59 / 2024
Court a quo Case No: SH 13 / 2019
In the matter between:
MOSES DLAMINI APPELLANT
and
THE STATE RESPONDENT
CORAM: MFENYANA J, KHAN AJ et MAODI AJ
Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representatives’ email addresses. The date for the hand -down is
deemed to be 10 February 2026.
ORDER
On appeal from: Regional Court for the North West Division held at Koster (Regional
Magistrate Matebesi sitting as court of first instance):
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
(i) Condonation for the late noting and prosecution of the appeal is granted.
(ii) The appeal against conviction is dismissed.
JUDGMENT
KHAN AJ
Introduction
[1] The appellant stood accused o f two charges. Count 1, murder read with the
provisions of section 51 (2) of the Criminal Law Amendment Act 105 of 1997.
Count 2, contravention of section 49 of the Immigration Act 13 of 2002. On the 7
March 2023 the appellant pleaded not guilty to count 1 and guilty to count 2. The
matter proceeded to trial in respect of count 1.
[2] On the 19 June 2023 the appellant was found guilty on count 1. On the 31 July
2023 the appellant was sentenced to fifteen (15) years’ imprisonm ent in respect
of count 1 and two (2) years’ imprisonment in respect of count 2, the sentences
to run concurrently. Additionally, the appellant was declared unfit to possess a
firearm.
[3] On the 27 September 2023 the appellant applied for leave to a ppeal from the
court a quo, which was granted. On the 31 March 2025 the appellant noted his
appeal to this court, which appeal included an application for condonation for the
late prosecution thereof. The appeal lies only against conviction on count 1.
Condonation
[4] In his application for condonation, the appellant indicated that he was assisted by
Legal Aid South Africa and that immediately after the application for leave to
appeal was granted he was advised that the records of the pr oceedings needed
to be transcribed and that the matter will be forwarded to the Hi gh Court Unit at
Legal Aid South Africa, Mahikeng. That he waited for Legal Aid as he had
instructed them to proceed with the appeal and they only advised him in
November 2024 that Mr Setumu was allocated to his matter . That the delay was
not due to his fa ult. The Respondent does not oppose the application for
condonation. The court is of the view that a proper case for condonation has
been made out and condonation is accordingly granted.
[5] The appellant raises two grounds of Appeal:-
5.1 That the trial court erred in admitting the evidence of an alleged
admission/confession of the appellant without holding a trial within a trial,
thus rendering the trial unfair.
5.2 That the court erred in making a fi nding that circumstantial evidence was
sufficient prove (sic) beyond reasonable doubt to convict the appellant on
a charge of Murder and submits that the conviction be set aside.
Factual matrix:
[6] State’s case
The state ’s case was premised on the statement made by the appellant to
Magistrate Kleynhans on the 24 December 2018, the photo album, the section
121(7) by Phophosi Nkonyani of the Phokeng Forensic Pathology Services , the
212(4) affidavit and post mortem report by Professor B Botha , the forensic
statement by Vusi August and the Biology report by P Naicker. All of which was
admitted into evidence as exhibits with no objection from the defence.
[7] The statement made by the Appellant confirmed the following:
i. That he was with the deceased at the deceased’s home on the night of the
22 December 2018.
ii. They were listening to music on his phone.
iii. The appellant asked the deceased to loan him R50.00 and the deceas ed
agreed but wanted the appellant to leave his phone with the deceased as
security.
iv. The appellant went to the bathroom and on his return asked for the money
as he wished to leave. The deceased refused to give him the money
stating that he had been buy ing the appellant liquor and that the appellant
now owed him money.
v. An argument ensued between the deceased and the appellant. The
appellant tried to take his phone from the deceased. The deceased
pushed the appellant against the corrugated iron of the shack and
grabbed something that looked like a knife from his bedside and
attempted to stab the appellant with it.
vi. The Appellent grabbed th e deceased’s hand and twisted it and in the
process the deceased got stabbed with his own knife. The deceased had
partitioned his shack with iron bars and when the appellant grabbed his
hand and turned with him, it hit against the iron bars and the knife s tabbed
him somewhere near his collar bone, he saw blood squirting out. The
appellant then let go of the deceased’s hand and managed to get out of
the deceased’s place and returned to the tavern to drink with his friends.
[8] The state intended calling two witnesses, but closed its case without leading any
evidence.
Defence case
[9] The appellant disclosed his defence in terms of s115(3) of the Criminal
Procedure Act 51 of 1977 (the CPA) as that of self-defence. The appellant did
not lead any evidence and closed his case.
[10] The appellant argues that he was convicted on the basis of the evidence of the
admission or confession that he made to the Magistrate and that the Court
misdirected itself by not holding a trial within a trial regarding the admissibility of
the evidence confession. Further that the prosecutor informed the Court that the
defence had indicated during the pre -trial conference that the were not going to
dispute the contents of the admission/confession which was incorrect. It is
necessary to interrogate this statement.
[11] It is apparent from the record that a pre -trial was held on the 2 March 2021 , in
terms of which the appellant and respondent agreed to admissions of some of
the evidence and that the appellant indicated that the contents of the confession
are placed in dispute. The appellant was represented by Ms Pheto of the office of
the state attorney at this time.
“Court: T hank you. Will the admissibility of any written statements,
pointing out by the accused, forensic evidence as indicated, the
confession, DNA results, section 212 of the CPA statements, post -mortem
and chain evidence be put in dispute?
Ms Pheto: No, Your Worship, safe for the contents of the confession, Your
worship. As the court pleases.”1
[12] When the matter was set do wn for trial on the 7 March 2023, Mr Linga appeared
for the appellant. It appears that a second pre -trial was held with Mr Linga, the
1 Record page 127, lines 15 to 24
precise details of which are not before this court, the following was however placed
on record:-
“PROSECUTOR: as the court pleases. Your Worship, during the pre -trial stages
the defence have indicated that they are not disputing the post -mortem report
including the chain evidence. Your worship. They further indicated that they are
not disputing the photo album. They are not di sputing the DNA results. They are
also not disputing, Your Worship the statement that was made to the magistrate
in chambers, Your Worship. May s ame be confirmed, Your Worship from the
defence
COURT: Mr Linga?
MR LINGA: Your Worship the defence does confirm same, Your Worship, Just to
seek clarity on one aspect, Your worship, the statement, what is the statement
handing up the statement as, Your Worship? That is what we want to know.
COURT: The statement that was made in chambers?
MR LINGA: Yes, Your Worship
PROSECUTOR: Your Worship, that will be a con, rather admissions, Your
Worship, made to the magistrate in chambers by the accused, not a confession
as [indistinct], Your Worship.
COURT: Mr Linga, you have been answered?
MR LINGA: Yes, Your Worship. We have no objection, Your Worship, to such
exhibits being handed up
COURT: As an admission?
MR LINGA: Yes, Your Worship.
COURT: Not confession Mr Mataboge?
PROSECUTOR: As the court pleases, Your Worship, Your Worship, before
handing in the said statement, Your Worship, as an exhibit, I would like to read it
on record, Your Worship?
MR LINGA: No objection, Your Worship from the defendant.
COURT: You may proceed, sir.2
2 Record page 153, lines 17 to 25 and page 154 lines 1to 25
[13] It is apparent from the aforestated exchange that Mr Linga had no objection to the
admission of the appellant’s statement as an admission and neither did the
appellant object to Mr Linga’s submissions as being contrary to his instruction.
[14] The appellant argues that the court a quo erred in not h olding a trial within a trial
regarding the admissibility of the evidence confession and that it is improper for a
court to leave it to the accused’s legal representative without proper instructions
from the accused to make an election on behalf of the acc used not to hold a trial
within a trial. This argument fails to appreciate that the appellant was present at
court and could have objected at any stage if what his legal representative was
conveying to the court was incorrect and not in keeping with his in structions. The
appellant refers to the matter of Gama v S 3 in support of his contention that a trial
within a trial should be held,
[15] The issue in Gama was whether the evidence alleging that a confession had been
made to an undercover operative, a captain in the South African Police Service,
should have been tested by way of a trial within a trial to determine its
admissibility.
The Court recorded, at paragraph 6
“It is necessary to record at the outset that the State did not alert the trial court at
all that it would be tendering evidence which may amount to a confession. This
was a fundamental miscarriage of justice. While the high court was correct in
finding that the appellant had been wrongly convicted on the basis of the doctrine
of recent possession, it also erred in confirming the conviction on the basis of the
appellant’s confession. If there had been any doubt as to whether the appellant’s
statement amounted to a confession, the prosecutor was duty bound to inform
the trial court accordingly. The magistrate should in those circumstances have
conducted the preliminary inquiry to determine firstly whether the appellant had
conducted the preliminary inquiry to determine firstly whether the appellant had
3 (127/2013) [2013] ZASCA 132 (27 September 2013)
made the statement and, if so, the na ture thereof. If the finding was that it did
amount to a confession, a trial within a trial had to be held to determine its
admissibility.
“It was further apparent from Touch’s testimony that neither the court nor the
appellant’s legal representative raised any objection to the evidence relating to
the confession or suggested that its admissibility be dealt with in a trial within a
trial. The appellant, in his own evidence, den ied that he had made the
confession”4 (my emphasis).
[16] In Gama, the confession was made to an undercover police officer and the
prosecutor failed to advise the court that a confession had been made at
the outset. The confession was in addition subject to the proviso set out in
s 217 of the Criminal Procedure Act 51 of 1977 (“the Act”), which the court
referred to at paragraphs 7 and 8 of the judgement, to wit,
“Admissibility of confession
The principles underlying the admissibility of a confession are set out in
s 217 of the Criminal Procedure Act 51 of 1977 (the Act), which provides
that:
‘(1) Evidence of any confession made by any person in relation to the
commission of any offence shall, if such confession is proved to have
been freely and voluntarily made by such person in his sound and sober
senses and without having been unduly influenced thereto, be
admissible in evidence against such person at criminal proceedings
relating to such offence: Provided -
(a) that a confession made to a peace officer, other than a magistrate or
justice or, in the case of a peace officer referred to in section 334, a
confession made to such peace officer which relates to an offence with
reference to which such peace officer is authorized to exercise any
4 Gama v S (127/2013) [2013] ZASCA 132 (27 September 2013), paragraph 12
power conferred upon him under that section, shall not be admissible in
evidence unless confirmed and reduced to writing in the presence of a
magistrate or justice;. . . .
Thus, a confession made to a magistrate or justice does not fall within
the scope of the proviso and is therefore admissible provided the
requirements of section 217(1) relating to voluntariness are satisfied. A
‘peace officer’ is defined in s 1, as including ‘any magistrate, justice,
police official, correctional official as defined in section 1 of the
Correctional Services Act, 1959 (Act 8 of 1959). . .’A commissioned
officer of the SAPS is a member holding the rank of lieutenant or higher,
and is in terms of s 4 of the Justices of the Peace and Commissioners of
Oaths Act 16 of 1963 read with the First Schedule to that Act, ex
officio a justice of the peace and therefore entitled to take a confession.
The underlying rationale of s 217(1) is based on the fundamental
principle that no inducement or coercion be brought to bear on an
accused person to confess. The confession made by the appellant to
Touch raises the issue whether it was properly obtained.”
[17] Gama is distinguishable from the present matter in a variety of ways,
i. The confession in Gama was made to an undercover policemen
involved in the matter, not an independent Magistrate.
ii. The prosecutor in the Court a quo, at the onset, advised the Court
that a statement was made by the appellant to a magistrate and
was goin g to be handed up as an exhibit and that this was by
agreement with the appellant’s legal representative Mr Linga, who
confirmed that he had no objection thereto.
iii. The accused in Gama denied that he made a confession and
despite this and in the absenc e of an objection by his legal
representative the matter continued.
iv. Neither the appellant nor Mr Linga disputed the admission of the
statement.
v. At no point did the appellant correct his legal representative, Mr
Linga or object to what Mr Linga was pacing before the Court a
quo.
[18] It is particularly important to have regard to what the Court in Gama said at
paragraph 13 of the judgement:-
“The admissibility of a confession where the question is whether it was freely
and voluntarily made and where it is disputed on the ground that it was
obtained in violation of other fundamental rights, and where the facts are not
common cause between the parties, is to be adjudicated upon at a trial within
a trial, an insulated enquiry where only the admissibility of a confession is
determined independently of the question of guilt. The defence is entitled to
lead evidence in rebuttal. It was for the prosecutor to inform the court and the
defence that it intended to lead evidence of a confession made by the accused
as part of the State’s case. If the defence had raised an objection a trial
within a trial would have had to follow,” (my emphasis).
[19] The appellant further argues that the preliminary questions on the
admission/confession document indicates that the appellant was never informed of
his right to legal representation by the police . Whether this is in fact correct is
questionable as no evidence was led i n this regard. It is however evident from the
exchange between the Magistrate and the appellant that the appellant was
warned of his rights to legal representation before he made his statement and the
appellant indicated that he understood and wished to proceed with the statement
The appellant at no time raised a violation of his constitutional right s which is
apparent from the following exchange
"Since your arrest, have you been informed about your rights to remain
silent, of the consequences of not remaining silent to wit that anything you
are saying can be used in evidence against you, not to be compelled to
make any admission or confession that could be used in the evidence
against you, to be informed of the reasons for being detained, to choose
and consult with legal practitioner of your own choice?" To have legal
practitioner assigned to you by the Legal Aid Board at state's expense if
substantial injustice would otherwise result?
Yes, except about my rights to be legally represented.
Now if any of these rights were explained, the said rights must be
explained now and it must be noted down which rights have been
explained. I now explained deponents rights to legal representation to
him as set out above’
Question
"You are now again informed that you have the right to consult with a legal
practitioner before making any statement, to be represented by legal
practitioner whilst making a statement, you may also apply for Legal Aid
prior to me proceeding further with your statement, an attorney will then be
provided to you free of charge.
Do you understand? Yes.
Do you want to consult with legal practitioner before making a statement?
No.
Do you want a legal practitioner to be present whilst making a statement?
No.
l am a magistrate. I have nothing to do with the investigation of any
charges against you. The police, the prosecution and I are not working
together in this regard. You can speak freely and without any fear. This is
not a court session, I am not busy with the trial against you. Do you
understand this and accept this? Yes.
You are under no obligation to make any statement. You have the right to
remain silent. You are not obliged to incriminate yourself by making an
admission or a confession. if you do make a statement I write it down and
it may be used in evidence in a court against you.
Do you understand? Yes.
Do you want to make a statement notwithstanding this warning? Yes.
You must take me into your confidence. If something out of the ordinary
has happened to you since your arrest to cause you to come to me to
make a statement, you must make it known to me. I undertake to bring it
to the attention of a police officer to investigate it.
Do you understand? Yes.
Who brought you to my office? A policeman, I do not know his name.
What caused you to come to my office?
The police told me if I wanted to confess, they will arrange that I
be brought here when I am prepared to make a confession. I was indeed
brought here to you.
Did anybody tell you what to come and say in your statement? It so, when
was it, who was it and what was said to you? No
If nobody told you what to come and say in your statement, where do the
content of whatever you want to tell me about originate from? I am the one
who did it and I want to tell you about it.
Did you previously make a statement to anybody regarding the charge or
charges against you? If so, when and to whom did you make a statement?
No
Why did you want to repeat the statement before me? Not Applicable
Have you been assaulted by anybody in order to get you to come to make
a statement? if so when were you assaulted, by who were you assaulted?
No
Do you fear any bodily harm if you refuse to make a statement? if so what
do you fear and why? No
Did anybody influence you to make a statement? If so, when by whom and
how were you influenced? No
Did anybody encourage you to make a statement? if so, when, by whom
and what does the encouragement entail? No
Did anybody tell you that when I am asking these questions to you, you
are not to inform me that you have been assaulted, threatened, influenced
or been told what to say to me by anybody else (for example a co-accused
or someone in the holding cells)? If so, when, by whom and what was the
nature thereof? No.
Does it play any role in your decision to make a statement? If so, in what
way does it play a role? Not applicable.
Were any promises made to you in order to persuade you to make a
statement? If so, whom made it and what was the nature thereof? No.
Do you expect any benefits if you do make a statement? If so, what is the
nature of the benefits that you expect? No.
I informed the deponent as follows. You cannot expect any benefits even if
you do make a statement. Do you understand this? Yes.
Since you cannot expect any benefits from making a statement, are you
still prepared to make a statement? Yes.
Are you under the influence of any intoxicating liquor and or drugs? No.
Is there anything else that you want to bring to my attention? No.
Do you have any injuries in or abrasions? Please show it to me if it is
visible. I am not injured in anyway.
Own observations regarding other injuries than shown to me. I see no
injuries.
How did you sustain all these injuries? Not applicable since there were no
injuries. Remarks regarding the appearance, condition of the deponent
(for example (crying, sits with head downwards, nervous, appears calm, et
cetera). The deponent is still sitting opposite me and he is mentally
stable."
With the description of the attire that he wearing on the date in question.
"I then informed the deponent as follows. I will if necessarily ask you
questions to clarify any matters raised in your statement. You are under
no obligation to answer any of these questions. You may remain silent or
refuse to answer. Do you understand? Yes."5
[20] It is apparent from the exchange above that the appellant was informed of his right
to remain silent, that he was not obliged to incriminate himself and that if he made
a statement it could be used in evidence against him, the appellant was further
advised of his right to consult with a legal practitioner before making any
statement, to be represented by a legal practitioner whilst making a statement and
that he could apply for legal aid prior to the Magistrate proceeding further.
[21] To all of this the appellant indicated that he understood and that he wished to
proceed. When the trial proceed on the 7 March 2023, the objection made to the
statement at the pre-trial held on the 2 March 2021 was not pursued.
[22] In argument, the appellant relied on his statement,
“Mr Linga argued that the onus lies with the state to proof its case beyond
reasonable doubt, that the state is relying on accused’s statements and
the said statement is the accused’s version.
He further argued that the state is [mechanical failure 14:35] That accused
gave his version in the said statement that it was only him and the
5 Record, pages 157 to 161
deceased in the shack playing music with his cell phone and he borrowed
R50 from the deceased and he agreed.
That the court should accept the accused’s statement as the truth
(my emphasis) and the state is saying the court should ac cept it and find
accused guilty of his own statement. He argued further that an expert
should have been called to tell the wound is a slash or deep wound,
because state is not an expert.”6
[23] For the appellant to now allege that the statement should not have been admitted
into evidence without holding a trial within a trial is opportunistic. The appellant
did not at any point place the statement in dispute except for one occasion at a
pre-trial held on the 2 March 2021, which objection was never pursued at the trial
of this matter. The appellant relied on the statement given to Magistrate
Kleynhans and argued th at the court should accept th is statement as the truth .
Consequently, I hold the view that the findings of the Court a quo were justified
and I find no room for interference in that regard.
[24] The second ground of appeal is that the Court erred in finding that circumstantial
evidence was sufficient to prove beyond reasonable doubt to convict the
Appellant on a charge of murder.
[25] In S v Cupido7, the court held it is trite that the factual findings of a trial court are
presumed to be correct. Therefore, a party seeking interference therewith must
demonstrate that there was a misdirection on the part of the trial judge which can
be clearly identified in order to justify interference with those findings on appeal,
otherwise a court of appeal will not interfere.8
6 Judgement, page 191, lines 11 to 25
7 (1257/2022) [2024] ZASCA 4 (16 January 2024) at para 23
8 R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705 –706; Santam Bpk v Biddulph 2004 (5) SA 586
(SCA) [2004] 2 All SA 23 para 5; R B v Smith [2019] ZASCA 48;2020 (4) SA 51 (SCA) para 22; HAL obo
MML v MEC for Health, Free State [2021] ZASCA 149; 2022 (3) SA 571 (SCA) para 87.
[26] The appellant pleaded self-defence, but closed his case without calling any
witness or testifying and relied on the statement he had made.
[27] In S v Cupido,9 the court recorded that,
“exculpatory statements in explanations of the plea should, as a general
rule, be repeated by the accused under oath in the witness-stand for them
to have any value in favour of the accused.10 In S v Mkhize11 it was stated:
‘It follows that any statement made by an accused or any answer to
questions put to him in terms of s 115 has no evidential value.’12
Unlike formal admissions made in terms of s 220, exculpatory statements
made in terms of s 115 do not constitute proof of the facts and furthermore
do not relieve the State of the burden of proving those facts. When a
defence is raised in the exculpatory part of an explanation of plea, the
State need only negate that defence to the extent of a prima facie case.13
Furthermore, an accused person is under no obligation to testify.
However, once the prosecution had produced sufficient evidence that
establishes a prima facie case, such evidence may become conclusive if
not dislodged by credible evidence of the accused. Thus, absent a
credible version from the accused, the version advanced by the
prosecution, if found credible, has to be accepted. In S v Dlamini and
Others17 Kriegler J emphasised the importance of freedom of choice in a
democracy. He stated that liberty to make choices brings with it a
corresponding responsibility and 'often such choices are hard'.
9 (1257/2022) [2024] ZASCA 4 (16 January 2024) at paragraphs 32 to 35
10 S v Malebo en Andere 1979(2) SA 636 (B); Sesetseen 'n Ander 1981 (3) SA 353 (A) at 374A-376H.
11 S v Mkhize 1978 (2) SA 249 (N).
12 S v Mkhize 1978 (2) SA 249 (N), at 251B. See also S v Dreyer 1978 (2) SA 182 (NC); S v Malebo en
Andere 1979 (2) SA 636 (B) at 640C-H; S v Selane 1979 (1) SA 318 (T) at 320G.
13 S v Mothlapingen 'n Ander 1988 (3) SA 757 (NC).
The trial court considered that the Appellant had the right to remain silent
but does so well advised of the consequences of the exercise of his right
to remain silent. The applicant silence indicates that he is not taking the
court into his confidence and that the only evidence adduced on behalf of
the state was the only evidence that was before the trial court.
[28] It is apparent from the Judgment that the following facts were not in dispute:
i. That the deceased and the appellant was in the shack on the day in question.
ii. That the appellant was with the deceased prior to his death
iii. That, according to the post mortem report the deceased had an incised wound
on the left hand side of the next (sic) penetrated through the soft tissues.
iv That the deceased had a stab wound of front left hand side lower part of chest
penetrated through liver
v That there were three cuts on the body.
vi That the person on the photo album is the deceased
vii That the appellant’s pair of jeans were taken for DNA analysis.
viii That the DNA analysed from the appellants pair of jeans matched that of the
deceased DNA.
ix That the state and the defence did not leads evidence safe to say the admission
of all exhibits from A to E.14
[29] In S v Cupido15, the court stated
“Where there is direct evidence of the commission of an offence, as in this case,
the failure to testify or the giving of a false alibi – whatever the reason therefor –
ipso facto that tends to strengthen the direct evidence of the State. Since there
is no testimony to gainsay it there is less occasion or material for doubting it.
14 Judgement page192, lines 9-25
15 (1257/2022) [2024] ZASCA 4 (16 January 2024) at paragraphs 37 to 38
In Osman v Attorney-General, Transvaal16, the Constitutional court went further
and stated:
Our legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an accused who fails to
produce evidence to rebut that case is at risk. The failure to testify does not
relieve the prosecution of its duty to prove guilt beyond reasonable doubt. An
accused, however, always runs the risk that absent any rebuttal, the
prosecution's case may be sufficient to prove the elements of the offence. The
fact that an accused has to make such an election is not a breach of the right to
silence. If the right to silence were to be so interpreted, it would destroy the
fundamental nature of our adversarial system of criminal justice.17
``
Accordingly, the appellant made his choice not to give evidence at his own peril.
He made his bed with his eyes open. It is not unfair now to say that he should lie
on it. “
[30] The statement that the appellant relied upon established that he was with the
deceased at the time of his death and when on his version, the deceased
stabbed himself by hitting the iron bar in the shack. The appellant admitted the
post-mortem report which confirmed that the deceased had an incised wound on
the left side of the neck penetrated through the soft tissues, a stab wound on the
front left side lower part of the chest penetrated through the liver and 3 cuts on
the body.
[31] The appellant then failed to gi ve evidence of the self defence that he pleaded.
The appellant had a duty to establish that his version was reasonably possibly
true. The onus of proof remained with the state to prove its case beyond
reasonable doubt, including negating the defence of self-defence.
16 Osman v Attorney-General, Transvaal [1998] ZACC 14; 1998 (2) SACR 493 (CC) (Osman); S v
Boesak [2000] ZACC (25)[2000] ZACC 25; ; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 para 24; S v
Chabalala 2003 (1) SACR 134 (SCA) para 20.
Chabalala 2003 (1) SACR 134 (SCA) para 20.
17 Osman v Attorney-General, Transvaal [1998] ZACC 14, paragraph 22
[32] The rules applicable when dealing with circumstantial evidence, was enunciated
by Watermeyer JA in R v BLOM18, must be considered.
“ (1) The inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn;
(2) The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not exclude
other reasonable inferences, then there must be a doubt whether the inference
sought to be drawn, is correct.”
[33] The approach that a court should adopt in approaching evidence was enunciated
by Heher AJA (as he then was) in S v Chabalala19,
“The correct approach is to weigh up all the elements which point towards the guilt of
the accused against all those which are indicative of his innocence, taking proper
account of inherent strengths and weaknesses, probabilities and improbabilities on
both sides and, having done so, to decide whether the balance weigh so heavily in
favour of the State as to exclude any reasonable doubt about the accused’s guilt.”
[34] The court a quo considered the circumstantial evidence 20 from the admitted
exhibits and drew an inference that the appellant caused the death of the
deceased. It is evident from the judgement that the inference and the proven
facts were considered and the only inference that c ould be ascertained from the
proven facts was that the appellant’s actions resulted in the death of the
deceased.
[35] In my view the trial court committed no misdirection in this regard. For all the
reasons stated above the appeal must fail. I make the following order:
18 1939 AD 188 at 202 and 203
19 2003 (1) SACR 134 (SCA) para [15]
20 Judgement at pages 197 and 198
Order
1. Condonation for the late noting and prosecution of the appeal is granted.
2. The appeal against conviction is dismissed.
_______________________________________
J. L KHAN
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
NORTH WEST DIVISION, MAHIKENG
MAODI AJ
Introduction
[36] The appellant faced two charges at the court a quo. Count 1 was murder read
with the provisions of section 51 (2) of the Criminal Law Amendment Act 105 of
1997. Count 2 was contravention of section 49 of the Immigration Act 13 of 2002.
On the 7 March 2023 the appellant pleaded not guilty to count 1 and guilty to
count 2. The matter then proceeded in respect of count 1 with the state having to
prove the appellant’s guilt. On the 19 June 2023 the appellant was found guilty
on count 1. On the 31 July 2023 the appellant was sentenced to fifteen (15)
years’ imprisonment in respect of count 1; and two (2) years’ imprisonment in
respect of count 2, with the sentences to run concurrently. He was also declared
unfit to possess a firearm.
[37] On the 27 September 2023 the appellant applied for leave to appeal from the
court a quo, which was granted. On the 31 March 2025 the appellant noted his
appeal to this court, which appeal included an application for condonation for the
late prosecution thereof. The appeal is only against conviction on count 1.
[38] The grounds of appeal are contained in the notice of appeal and are that:
38.1 The trial court erred in admitting the evidence of an alleged
admission/confession of the appellant without holdin g a trial within
a trial, thus rendering the trial unfair.
38.2 The court erred in making a finding that circumstantial evidence
was sufficient prove beyond a reasonable doubt to convict the
appellant on a charge of Murder.
38.3 The appellant submits that the conviction be set aside.
Condonation
[39] In his application for condonation, the appellant provided exhaustive reasons for
same. The condonation application is not opposed by the respondent. I find that
the appellant has succeeded in his applicati on for condonation. Condonation is
therefore granted.
Background and evidence
[40] On the 24 December 2018 the appellant was brought before Magistrate A.
Kleynhans of Koster Magistrate Court where he made a confession. In or during
the confession the ap pellant indicated to the magistrate that although he was
warned of all his rights by the police, he was not warned of his rights to legal
representation before he was brought for confession. The magistrate proceeded to
warn the appellant of his rights to l egal representation before he made a
confession, to which the appellant indicated that he understood and wished to
proceed with the confession.
[41] On the 2 March 2021 a pre -trial conference was held where the appellant and
respondent agreed to admissions of some of the evidence. The appellant however
indicated that the contents of the confession are placed in dispute. There seems to
have been another (second) pre -trial conference but according to the heads of
argument of the respondent, the record of the said pre -trial conference is not
available.
[42] The matter then proceeded on the 7 March 2023 before the court a quo. The
appellant made a plea ex planation to the effect that he acted in self -defence in
respect of count 1. The respondent indicated that the appellant has admitted the
post-mortem report, chain of evidence, the photo album and DNA results. The
respondent further informed the court a quo that the appellant does not dispute the
statement he made to a magistrate in chambers. The appellant sought clarity as to
whether the said statement is handed in as a confession or what, to which the
respondent replied that it is handed into record as an admission and not a
confession. The respondent read the statement into record , handed same into
record and it was marked as exhibit “A”.
[43] The court a q uo then enquired on why the statement indicates that the appellant
provided information in iSizulu when making the statement but elected to proceed
in Setswana in the proceedings. The appellant confirmed that he is fine with
Setswana. A photo album was han ded into record as exhibit “B”. Exhibit “C” was
the section 212 affidavit by Professor BL Botha who performed the post -mortem
and affidavit by Phophosi Nkonyani of the Phokeng Forensic Pathology Services.
[44] The forensic statement compiled by police off icer Vusi Rikhotso was accepted as
exhibit “D” while the biology report by P Naicker was accepted as exhibit “E”.
[45] The respondent closed its case without leading any evidence and relied only on
the exhibits handed into record. The appellant also closed his case without leading
any evidence.
Findings by the court a quo
[46] The court a quo convicted the appellant based on his statement which was handed
in as exhibit “A” together with the other exhibits without any other evidence. The
court a quo foun d that the appellant’s silence indicates that he was not taking the
court into his confidence. As a result the evidence adduced on behalf of the
respondent was the only evidence that was before the court a quo as the appellant
failed to testify.
[47] The court a quo further took the appellant’s plea explanation into consideration in
its judgment. The court a quo found that the blood samples of the deceased
matched the blood samples found on the appellant’s pair of jeans which he was
wearing on the day of the incident. The court a quo found that it is not in dispute
that the pair of jeans was found after the death of the deceased and found at the
accused’s house.
Analysis and reasons for judgment
[48] The authorities are clear that the onus remains on the state to prove the
accused’s guilt beyond a reasonable doubt. Once the state has acquitted itself of
this onus, it is then upon the accused to provide evidence which is reasonably
possibly true so that his version can be accepted. The accused has no oblig ation
to assist the state in proving its case and his explanation does not have to be
beyond a reasonable doubt.
[49] In S v M 2006 (1) SACR 135 (SCA) at para 189, the court stated that:
“The point is that the totality of evidence must be measured, not in
isolation, but by assessing properly whether in the light of the inherent
strengths, weaknesses, probabilities and improbabilities on both sides the
balance weighs so heavily in favour of the state th at any reasonable doubt
about the accused’s guilt is excluded.” See also S v Chabalala 2003 (1)
SACR 134 (SCA) at para 15.
[50] The appeal lies only against count 1 and I restrict myself to the said charge. The
appeal is based on the acceptance by the court a quo of the
admission/confession statement by the appellant and also the circumstantial
evidence based on the exhibits handed into record. The appellant submits that a
trial within a trial should have been held, more so since the appellant indicated
during the taking of the said statement that the police are the ones who asked
him if he wants to make a confession without informi ng him of his rights to legal
representation. Further that the appellant, at the start of the trial, indicated to the
court a quo that they dispute the contents of the said statement.
[51] From the record, it is clear that there has been a chain of irreg ularities and
misdirection. At the taking of the statement by the accused, which occurred
before Magistrate Kleynhans, the moment the appellant indicated to him that he
was told by the police to make a confession and that he was not informed of his
rights to legal representation, the magistrate should have stopped right there and
not go further. This was irregular on its own.
[52] Section 73(1) and (2A) are clear that the accused is entitled to the assistance of
a legal adviser from the time of arrest. Se ction 73 (2B) requires that the accused
be given a reasonable opportunity to obtain legal representation. The fact that
the magistrate informed the appellant of his rights to legal representation and
immediately proceeded to take a statement from the appel lant does not cure the
defect occasioned before the appellant was brought to him. Also, it does not
comply with section 73 (2B).
[53] At the pre -trial, the appellant indicated that he objects to the contents of the
statement. This was repeated at the cou rt a quo on the day the appellant was
asked to plead to the charges. His representative informed the court a quo that
they object to the contents of the statement. Yet the court a quo accepted the
statement and relied on same, amongst others (circumstantia l evidence), to
convict the appellant. This was irregular.
Circumstantial evidence
[54] In Mahlalela v S (396/16) [2016] ZASCA 181 (28 November 2016) at para14 it
is stated that:
“(14) … It is trite that in cases based on circumstantial evidence the co urts
are enjoined to follow the judgment in R v Blom 1939 AD 188 at 202. The
two ‘cardinal rules of logic’ relating to inferential reasoning in cases based
on circumstantial evidence set out in Blom are:
(1) The inference sought to be drawn must be consist ent with all
proved facts. If it is not, the inference cannot be drawn.
(2) The proved facts should be such that they exclude every
reasonable inference from them save the one sought to be drawn.
If they do not exclude other reasonable inferences, then th ere must
be a doubt whether the inference sought to be drawn is correct.
(15) The difficulty is that proved facts envisaged in Blom are facts proved
beyond reasonable doubt. Intermediate inferences, too, must be
based on proved facts. Inferences may not be drawn from other
inferences.”
[55] The court a quo was sitting only with admissions made in terms of the chain
evidence. The statement by the appellant (which I have already found that it was
irregularly obtained), post-mortem, the DNA, the photos of cri me scene, forensic
investigations and findings. There is no evidence before the court a quo as to
how the appellant was arrested and what happened from the time of his arrest,
through the making of a statement to Magistrate Kleynhans, to the plea
explanation of self -defence and denial of the contents of the statement, despite
the appellant’s objection to the contents of the statement.
[56] The court a quo found that the appellant was with the deceased on the day of the
incident and that the blood found on the appellant’s pair of jeans matched that of
the deceased by DNA tests. The pair of jeans were found at the appellant’s
house. As to how the pair of jeans were found and what happened to link them to
the DNA of the deceased, remains a mystery as no one h as testified to that
effect. There is only statements by forensic experts who state that the pair of
jeans were found at the appellant’s house.
[57] The only causal link, which merges or brings the forensic evidence or chain
evidence together, is the sta tement made by the appellant to Magistrate
Kleynhans. Without that statement, there cannot be any application of
circumstantial evidence. I have found the statement irregularly obtained.
Therefore, the chain evidence is rendered null and void ab initio. Th is vitiates the
whole proceedings in respect of count 1.
Order
[58] I therefore make an order as follows:
1. The appeal is upheld.
2. The conviction of the appellant on count 1 is set aside.
_________________________
J. T. MAODI
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
NORTH WEST DIVISION, MAHIKENG
Mfenyana J:
[59] This appeal served before the Full Bench of this Division. At the request of the
Judge President of this Division, on 8 December 2025, I was roped in as a third
judge after the matter had been argued before Khan AJ and Maodi AJ, who
could not agree on the outcome of the appeal , save for the issue of
condonation. I have had the benefit of the record of proceedings before the
court a quo, albeit incomplete, as well as the heads of argument on appeal. This
judgment is limited to the merits of the appeal.
[60] I consider it necessary to, at the outset , deal with the adequacy or otherwise of
the record of the trial. On reading the record, I was satisfied that it was
sufficiently detailed to adjudicate the appeal and that doing so would not
prejudice the appellants in any way . I am guided in this regard by the decision
of the Supreme Court of Appeal (SCA) in Chabedi21 echoed by the
Constitutional Court in Schoombee22 that “the requirement is that the record
must be adequate for proper consideration of the appeal ”. As in Schoombee,
the available record is detailed and specific for this court to consider the appeal.
[61] I have also had the benefit of reading the judgments by Khan AJ and Maodi AJ.
I agree with Maodi AJ only insofar as he finds that the court a quo’s acceptance
of the admission by the appellant amounts to a misdirection. As is apparent in
21 S v Chabedi [2005] ZASCA 5; 2005 (1) SACR 415 (SCA)
22 Schoombee and Another v The State [2016] ZACC 50.
the succeeding paragraphs, this finding remains unaffected by the other ground
of appeal.
[62] I agree with Khan AJ insofar as she concludes that the appeal should fail. I,
however, do so for slightly different reasons. I set out to deal with those reasons
hereunder.
[63] When the pre -trial was held on 2 March 2021, the following engagement
transpired between the court and Ms Pheto, the legal representative of the
appellant at the time:
“Court: Thank you. Will the admissibility of any w ritten statements,
pointing out by the accused, forensic evidence as indicated, the
confession, DNA results, section 212 of the CPA statements, post-mortem
and chain evidence be put in dispute?
Ms Pheto: No, Your Worship, safe for the contents of the confession, Your
worship. As the court pleases.”
[64] When the trial resumed on March 7, 2023, Mr Linga, who represented the
appellant from that day forward, was asked once again if the appellant
contested the admission of the statement made to the magistrate in chambers.
Mr Linga replied that the appellant did not dispute the admission of that
statement. This contradicted the appellant's earlier response, in which he had
disputed the statement.
[65] I must express my difficulty in understanding the approach ta ken by the court a
quo in this regard. On 2 March 2021, the appellant, through his legal
representative, disputed the content s of the statement made to the magistrate.
At that point, the court should have ordered a trial within a trial to address the
appellant's concerns and assess the reliability and admissibility of the
statement. Instead, the court admitted the statement with out conducting such
an inquiry, which is irregular. The appellant’s response was part of the court
record but seems to have been overlooked.
[66] In my view, it does not matter that the appellant had a change of heart on the
second occasion. The main issue is that he had already disputed the statement.
To the extent that the court a quo did not clarify the reasons for the appellant's
change in stance regarding the admission of the statement, it erred.
[67] Section 217 of the Criminal Procedure Act (CPA) 23 governs the admissibility of
confessions. It provides that where a confession by an accused has been made
to a magistrate or has been confirmed and reduced to writing, it shall be
admissible in evidence against that accused and shall be pr oved to have been
made freely and voluntarily, in his sound and sober senses, unless the contrary
is proved.
23 Act 51 of 1977.
[68] In Gama v S 24, a decision of the Supreme Court of Appeal (SCA), relied on by
the appellant, the SCA held that:
“The admissibility of a confession where the question is whether it was freely and
voluntarily made and where it is disputed on the ground that it was obtained in
violation of other fundamental rights, and where the facts are not common cause
between the parties, is to be adjudicated upon at a trial within a trial, an insulated
enquiry where only the admissibility of a confession is determined independently
of the question of guilt. The defence is entitled to lead evidence in rebuttal. It was
for the prosecu tor to inform the court and the defence that it intended to lead
evidence of a confession made by the accused as part of the State’s case . If the
defence had raised an objection a trial within a trial would have had to follow,”
[69] From the above, it f ollows that if the defence raises an objection to the
admissibility of a confession, a trial within a trial must be held. It did. What
followed thereafter is, in my view, immaterial and should, in any event, not have
happened. Accordingly, it was necessary to establish the correctness and the
admissibility of the confession.
[70] To my mind, the determination of the correctness of the confession and the
admissibility thereof are not issues this court is seized with. Neither is the
question whether or not the statement was obtained irregularly. It is material to
the assessment of the first ground of appeal that a trial within a trial ought to
have been held.
[71] I do not share my sister’s sentiments about the court a quo’s election to focus
solely on the proceedings of 7 March 2023, completely disregarding the record
24 (127/2013) [2013] ZASCA 132 (27 September 2013).
of 2 March 2021. If I had needed to engage with that conclusion, my inclination
would have been to disagree with it.
[72] On the second ground of appe al relating to circumstantial evidence, R v Blom
is instructive. It states as follows, regarding inferential reasoning:
(1) “The inference sought to be drawn must be consistent with all proved facts. If
it is not, the inference cannot be drawn.
(2) The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not exclude
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.”
[73] In the present case, the proven facts are that the deceased’s death was a result
of sharp, forced trauma to the chest and neck. This is according to the post -
mortem report. Secondly, the DNA analysis indicates that the appellant’s DNA
matched the DNA found on the deceased. This conclusively proves that the
appellant was in the company of the deceased when he was killed. The
appellant did not challenge this evidence. Third, the appellant does not dispute
his presence at the deceased’s shack insofar as he ple aded that he acted in
self-defence.
[74] The appellant, in his plea explanation, stated that he killed the deceased in self -
defence. Ordinarily, an explanation setting out the basis of self -defence is not
regarded as evidence given under oath but as a for mal statement. An accused
person who pleads self -defence is required to demonstrate that it was
necessary to avert an attack and has employed reasonable means directed at
the attacker to avert such an attack. The averments made by the appellant are
informal admissions, and this court is at large to have regard thereto in its
judgment.
[75] Once an accused raises a plea of self -defence, the essence thereof is that he
admits to the intentional killing of the person concerned but argues that their
actions were justified or legally permissible. It was held in De Oliveira25 that the
killing of a person is prima facie unlawful. In the present case, the appellant
would have had to lead evidence to rebut the presumption of unlawfulness.
Absent such evidence, the requirement of unlawfulness would have been
satisfied. In pleading self-defence, the appellant admitted the elements of the
offence, save for unlawfulness.
[76] Not all the facts considered by the court a quo depend on the confession made
to the magistrate. The above facts, which are not in dispute, stand
independently of that confession. Thus, regardless of the discounting of the
confession, the proven facts are sufficient for the court to have returned a
verdict of guilty. In doing so, the court a quo was well within the bounds of the
logic required in inferential re asoning. The forensic evidence was not
challenged by the appellant, despite having placed himself at the scene of the
crime in his plea explanation. Considering the totality of the circumstantial
evidence, there can be no other reasonable inference in the circumstances,
25 S v De Oliveira [1993] ZASCA 62; 1993 (2) SACR 59 (A); See also: David Papiki Komane v The State
(51/2019) [2022] ZASCA 55 (20 April 2022).
other than that the appellant is guilty of the murder of the deceased.
Consequently, this ground of appeal falls to be dismissed.
[77] In the result, I make the following order:
a. The appeal against conviction is dismissed.
S MFENYANA
Judge of the High Court
Northwest Division, Mahikeng
APPEARANCES
For the appellant: Adv M. E. Setumo
Instructed by: Legal Aid SA
For the respondent Adv. K. Phetlhu
Instructed by: NDPP – North West Division
Date judgment reserved: 16 May 2025
Date of Judgment: 10 February 2026